Jacqueline

Born in country A-

Country B- lived for long here, month visit to country C, and fortnight visit to country D.

Jacqueline divorced in country B, husband remarried in country B.

Amani of country C gave proposal to marry Jacqueline in country D.

Marriage officer did not issue the license- said marriage not over yet.

Amani has approached court- no country Ds court will not recognize restriction on
remarriage imposed on one party

Situation 1

Jacqueline’s domicile is country B due to continuous habitual residence. The capacity to enter
further marriage is recognized from place of domicile.

1. Schwebel v. Unhar
F- Husband and Wife married and domiciled in Hungary decided to emigrate to Israel (they
were jewish)- en route they decided to divorce by a jewish ghet in Italy. This form of divorce
was only recognized in Issrael, and not in Hungary or Italy.
As it was recognized in Israel- their divorce was ok when they acquired domiciled in Israel.
Later she moved to Canada (Still having domicile in Israel) and married second husband-
even got a child
First husband moved to nullify marriage on ground of bigamy
Primary question- whether she had capacity to marry
Canadian law considered capacity to marry for the second time based on the domicile
Incidental question- recognition of divorce

Held- Court here took the lex causa’s approach, and applied the conflict of law rule of Israel
to determine validity. This was by the HC
SC of Canada upheld this decision on the ground that her antenuptial domicile recognized her
status as a single woman. Therefore, the conflict of law rule of Israel was applied. This leads
to an awkward situation – woman is married to two different people in two different
jurisdictions
(one more reason according to Cheshire- court upheld validity because holding otherwise
would mean that they are determining the personal status of a person not domiciled in
Ontario by the law of Ontario but by the law of the country of the persons domicile).

Similarly in this case (apply all facts- country B is Israel) - habitual residence is in country B-
Main question- capacity to remarry
Incidental question- validity of prior divorce, and domicile
Here, applying schwebel’s reasoning, the court would refer to country Bs laws. Being a
double renvoi country- they would decide the case as the court of country B would have
(since courts recognize jacquelines domicile according to B).
(put case re annesly and re ross on double renvoi).

On domicile
On the question of domicile, country Bs law says that Jacqueline has not acquired domicile in
country B. Country D on the other hand recognizes that Jacqueline is domiciled in Country B.
It applies the common law domicile test where the settled principle is that nobody shall be
without a domicile (Mark v Mark, 2005). Further, it also applies the doctrine of revival which
states that if the domicile of origin is displaced as a result of the acquisition of a domicile of
choice, the rule of English law is that it is merely placed in abeyance for the time being. It
remains in the background ever ready to revive and to fasten upon the propositus immediately
he abandons his domicile of choice (Udny v Udny 1869). Nobody can be without a domicile,
so the revival of the domicile of origin is the most logical approach given the endurance and
tenacity of a domicile of origin. Since B does not recognize that Jacqueline is domiciled in
country B, the revival of domicile of origin doctrine will be applied and the same would
consider that Jacqueline’s domicile is that of country A, the original country of birth.

On recognition of divorce.
Now that country D has recognized A as the origin domicile due to double renvoi, capacity of
marriage is also to be recognized according to country As law. Therefore since A does not
recognize the divorce of B, the status of the parties is still that they are married.
Therefore the new marriage wont be recognized.