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or elsewhere. If the defendant is not a resident of the country, service may be made by publication and mailing. Reo. Stat. of Ohio, by Sran, &c., vol. I., p. 513, 511.
The statute of Illinois is, “No person shall be entitled to a divorce in pursuance of the provisions of this chapter, who has not resided in the State one whole year previous to filing his or her bill or petition, unless the offense or injury complained of was committed within this State, or whilst one or both of the parties resided in this State." Statutes of Illi. nois, by Scates, T. & B., vol. I., p. 150, $ 3.
The statute of Indiana provides that, “divorces may be decreed by the circuit courts of this State, on petition filed by any person, who, at the time of filing such petition, shall bave been a bona fide resident of the State one year previous to the filing of the same, and a resident of the county at the time of the filing of such petition, which bona fide residence shall be duly proven by such petitioner to the satisfaction of the court trying the same." Act of March 4, 1859, Statutes of Indiana, of 1862, vol. II., p. 350, $ 6.
The statute of California requires residence within the State by the plaintiff for divorce, for a period of six months immediately preceding the application. General Laws of California, vol. I., p. 2415.
The rule in Virginia is as follows: “No such suit shall be maintainable, unless the parties, or one of them, is a resident of the State at the time of bringing the suit. The suit shall be brought in the county or corporation in which the parties last cohabited, or (at the option of the
& resident of the State ; but if not, then in the county or corporation in which the plaintiff resides." Code of Virginia, of 1860, p. 530, 8 8.
Nearly all these rules, it will be seen, authorize divorces in cases in which the existing rules of international law would not recognize the validity of a divorce.
Under the English statute it is understood that the courts have jurisdiction to grant divorces where the domicil of the parties is English, although the marriage and adultery took place abroad. They also have jurisdiction where the parties are English subjects, although the offend. ing husband has changed his domicil and committed the offense in a foreign domicil, and also where foreigners domiciled abroad are married in England according to English law. Chitty's Statutes, vol. I., p. 1275, note a.
The English statute authorizes the petition to be served within or without the dominion, or service to be dispensed with entirely by the court.
The provisions of this Chapter, in connection with those of Chapter XXXIX. on MARRIAGE, have been proposed in the hope of presenting a rule which would avoid the grave inconveniences attending an irreconcilable conflict of jurisdiction in reference to a relation so closely con. nected with the morals and welfare of society. No State, it is conceived, ought to grant divorces upon any rule of jurisdiction which it will not reciprocally recognize and respect when exercised by any other State.
Power of divorce.
674. The power of a nation to grant divorces exists in the following cases only:
1. When both parties have their domicil within the nation at the time the application for a divorce is made ;' or,
2. When either party has such a domicil and the other is within the jurisdiction of the nation, and has personal notice of the proceeding; or,
3. When the marriage was contracted within the nation or by its officers, and the applicant for the divorce is domiciled there at the time of the application, and the other party has such notice as the proper authorities of the nation require.'
Story, Confl. of L., § 597; Westlake's Private International Law, p. 351 ; Bishop, (Marriage & Divorce, vol. II., $ 144,) supported the jurisdiction in this case, and it is established also in Scotland.
It is said by Kent, (2 Commentaries, pp. 117, 118,) that "if a marriage is dissolved in a foreign country not by a regular judicial sentence but by a special legislative act passed for that purpose ; would such a divorce not be binding here? While it is conceded to be a principle of public law, that acts valid by the law of the place where they arise are valid every. where, it is at the same time to be understood that this principle relates only to civil acts founded on the volition of the parties, and not to such as proceed from the sovereign power. The force of the latter can not be permitted to operate beyond the limits of the territory, without affecting the necessary independence of nations."
In an international Code it should seem proper to recognize the power of the nation to grant divorces, leaving the department by which this power is to be exercised, to be determined by the municipal law.
? Bishop states, that the jurisdiction exists in this case and that notice is not always necessary, but it seems proper to require it, and the provision contained in subdivision 3 will obviate any real hardsbip.
3 The difficulty arising when the wrongdoer removes to avoid the juris diction has been the subject of some discussion, and suggests the principle of allowing the resort in such case to the State by authority of which the marriage was made.
The Revised Statutes of Louisiana of 1850, contain the following provisions : Whenever a marriage shall have been contracted in this State, and the busband, after such marriage, shall remove or shall have removed to a foreign country with his said wife, if said husband shall be. have or shall have behaved toward his said wife in said foreign country in such manner as would entitle her, under our laws, to demand a separation of bed, board, or a separation of property, it shall be lawful for her on returning to the domicil where the marriage was contracted, to
institute a suit there against her said husband for the purposes above mentioned, in the same manner as if they were still domiciliated in said place, any law to the contrary notwithstanding. In such cases an attorney shall be appointed by the court to represent the absent defendant; the plaintiff shall be entitled to all the remedies and conservatory measures granted by law to married women, and the judgment shall have force and effect in the same manner as if the parties had never left the State. Rev. Stat. of Louisiana, p. 242, $ 4.
Jurisdiction unaffected by change of domicil.
675. A change of domicil after proceedings commenced, does not take away the jurisdiction.
This article is intended to provide for cases such as those where a domi. ciled plaintiff changes his domicil to avoid a cross bill by a domiciled defendant or one who is not domiciled within the jurisdiction, but is only found and served there, under the provision of the first and second subdivisions of Article 674.
The domicil required for jurisdiction. 676. The domicil required for the purpose of jurisdiction to grant divorce is that defined by Title VII., on DOMICIL.
Judgment of divorce for defendant. 677. If a suit for divorce be within the jurisdiction of the tribunal, it may entertain a complaint from either party, and grant a divorce to the defendant if the case require it.
This provision is suggested by Jenness o. Jenness, 24 Indiana Rep., 355.
Judgment of divorce everywhere valid.
678. A judgment of divorce pronounced by the proper authority of a nation having jurisdiction, is valid everywhere.
Sufficiency of cause of divorce. 679. The sufficiency of a cause of divorce depends exclusively on the law of the forum at the time judgment is pronounced.
Westlake's Private Intern. Law, p. 335.
The English rule, it is understood, adheres to the law of England in respect to the cause of divorce, in testing the validity of a divorce from an English marriage, granted by a foreign court to suitors domiciled within its jurisdiction. But the converse of this rule would not be applied ; English courts would not grant divorce from a foreign marriage on grounds recognized only by the foreign law.
The rule proposed in the text seems the proper one to secure ani. formity.
Evasion of lau. 680. A divorce granted by the authorities of any pation to a person, intending to evade thereby the provisions of this Chapter, is invalid everywhere. Shannon o. Shannon, 86 Massachusetts Rep., 134.
The doctrine of the comity of nations requires this. By the existing rule, such a divorce is perhaps valid in the State where granted. Walker's American Law, 717.
681. Obligations imposed by a judgment of divorce follow the person, and may be enforced wherever he is found.
Where a court of competent jurisdiction in New York, decreed a divorce a mensa et thoro between man and wife, allowing alimony to the latter, and the husband removed to Wisconsin for the purpose of placing himself beyond the jurisdiction of the court which could enforce it, and while in Wisconsin, without disclosing the circumstance of the divorce in New York, obtained a divorce a vinculo on the allegation that his wife had wilfully abandoned him,-it was held that the divorce could not release the husband from his liability to the decree made against him in New York, upon that decree being carried into judgment in any court where the defendant might be found, or within whose jurisdiction he might have acquired a new domicil. Barber o. Barber, 21 Howard': U. 8. Supr. Ct. Rep., 582.
By other provisions of this Code, a judgment of divorce though it can not directly affect the title to real property in another nation, may affect the title to personal property, to the same extent as any other transfer by operation of law.
682. Disabilities imposed by a judgment of divorce, are territorial, and do not affect the capacity of the person when in another jurisdiction, if by the law of the latter place, such disabilities do not exist. Ponsford v. Johnson, 2 Blatchford's U. S. Circuit Ct. Rep., 51.
A decree of divorce pronounced by the court of chancery of New York was, in its purport and by force of the statute of the State, regarded as an absolute dissolution of the marriage contract for both parties, but the disqualification or disability to marry again declared by the statute as attaching to the guilty party by way of penalty, was considered as oper. ative only within the State of New York, and not as incapacitating him from contracting a valid marriage in the State of New Jersey, where the same disabilit: does ot exist. Popsford o. Johnson, supra.
The Statutes of Massachusetts contain a provision that, “When a di. vorce from the bond of matrimony, except for the cause of adultery, has been granted under the laws of this State or any State or territory of the United States, the justices of the supreme judicial court, or either of them, upon petition filed by the party against whom the divorce was granted, (if the party reside in this State at the time of granting the di. vorce,) and upon such [notice] as the court shall order, may authorize such party to marry again.” General Stat. of Massachusetts, of 1860, p. 534, § 26. .
“ Divorce”, defined.
683. The term “divorce" as used in this Code includes a judgment declaring the parties or either of them free from any or all of the personal obligations of marriage.
This will include decrees of nullity and separation, as well as decrees of dissolution of marriage.
In Birt o. Boutinez, Law Rep., 1 Probate & Divorce, 487, it was held that the parties having been married in Scotland, and a second time in Belgium, a Belgian judgment dissolving the Belgian marriage, did not dissolve the Scotch marriage.
Under the uniform rules embodied in this Code, a judgment of divorce should reach the status of the parties, and not be limited to a particular contract.
BANKRUPTCY AND INSOLVENCY,
ARTICLE 684. Validity of discharge.
685. Transfer of property.
Validity of discharge.
684. The nation, whose law, according to Article . 603,' governs the interpretation of a contract, or whose
law creates any other obligation, has jurisdiction to grant a discharge therefrom; and such discharge, if valid according to its law, is valid everywhere.'
A discharge granted in any other place, is valid only as against the nation by whose authority the same is granted, its members and its domiciled residents,' and