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pletely executed contract.

Following the general rule touching the "proper law" to govern executory contracts,1 if a contract to marry is made in one State (locus celebrationis), and it is agreed that the marriage is to take place in another (locus solutionis), or such an intention is to be implied, the law of the place of performance (lex solutionis) is to govern the performance of the contract, and to determine whether it has been properly performed, or, if it cannot be legally performed there, to determine the validity of the original contract. If the marriage may lawfully be celebrated in the State agreed upon (the locus solutionis of the contract to marry), the contract to marry will be sustained, though made in a State where such marriage (if there celebrated) would be invalid; and if the marriage is contrary to the law of the place where the executory contract is to be performed, that promise will be invalid though it could have been lawfully performed in the State where the promise of marriage is entered into. The lex solutionis of an executory contract governs matters relating to its performance, and this applies as well to promises of marriage as to other executory contracts."

In the discussion of the contract of marriage, which is an executed contract, we must anticipate the principles which determine the "proper law" governing executed contracts gener1 See post, § 175.

421.

2 See Haviland v. Halstead, 34 N. Y. 643; Van Voorhis v. Brintnall, 86 N. Y. 18, 26, 40 Am. Rep. 505. But see Campbell v. Crampton, 2 Fed. 417, In the latter case, a man entered into a contract in Alabama, where he resided, with his aunt, to marry her at a future time in New York, where she resided. Such a marriage was invalid in Alabama, but good in New York. The woman sued him in New York for breach of promise. The court held that the contract was invalid, but not on the ground that the contract should be governed by the law of the place where it was made. On the contrary, it was admitted that its validity should be governed by the law of the place of performance (lex soluționis). But it was decided that the place of performance of the promise of marriage was not the place where the marriage was to take place (New York), but was the domicil of the future husband (Alabama), where the parties were to live their married life. This latter ruling can hardly be reconciled with reason. The contract to marry is performed as soon as the marriage occurs.

ally, from which the contract of marriage does not materially differ.

We have heretofore seen that the capacity to contract marriage" is in general to be determined by the law of the place where the contract is to be entered into (lex loci celebrationis).3

Another principle applicable to contracts generally, and equally 、 applicable to the marriage contract, is that the formal validity of the contract (that is, the forms and solemnities with which it is to be entered into) is also to be determined by the law of the place where the contract is entered into (lex loci celebrationis). With respect to the forms and ceremonies of the marriage, the solemnities with which the parties are required by law to enter into the marriage contract, it is universally conceded by all the authorities, English and American, that the lex celebrationis governs, no matter where the question arises. So far as these matters are concerned, if the marriage is valid in the locus celebrationis, it is valid everywhere; if invalid where contracted, it is in general invalid everywhere." Thus the lex celebrationis has been held to govern the effect upon the validity of the marriage contract of the omission of banns or license; of the want of consent of parent or guardian; of

3 Ante, § 73.

• See post, § 172.

5 Scrimshire v. Scrimshire, 2 Hagg. Cons. 395; Dalrymple v. Dalrymple, 2 Hagg. Cons. 54; Compton v. Bearcroft, 2 Hagg. Cons. 444; Warrender v. Warrender, 2 Cl. & F. 488, 530; Patterson v. Gaines, 6 How. 550, 587; State v. Tutty, 41 Fed. 753, 760; Phillips v. Gregg, 10 Watts (Penn.), 158, 36 Am. Dec. 167, 168; Dumaresly v. Fishly, 3 A. K. Marsh. (Ky.) 368; Hutchings v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; Com. v. Graham, 157 Mass. 73, 75; Loring v. Thorndike, 5 Allen (Mass.), 257, 265; Vischer v. Vischer, 12 Barb. (N. Y.) 640, 645; Kinney v. Com., 30 Gratt. (Va.) 858; Clark v. Clark, 52 N. J. Eq. 650, 30 Atl. 81, 83; Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 319; Jackson v. Jackson, 80 Md. 176, 30 Atl. 752, 754; Pennegar v. State, 87 Teun. 244, 10 S. W. 305, 2 L. R. A. 703, 705; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683, 684.

• Compton v. Bearcroft, 2 Hagg. Cons. 444; Loring v. Thorndike, 5 Allen (Mass.), 257, 265. The former was the first case to uphold the validity of "Gretna Green" marriages.

7 Steele v. Braddell, Milw. (Irish), 1; Simonin v. Mallac, 2 Sw. & Tr. 67 ; Com. v. Graham, 157 Mass. 73.

the omission of religious rites, such as a celebrant in holy orders, etc.

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in the courts of the domicil But if the parties, in their domicil, go into a barbarous

The fact that the parties go abroad to contract the marriage in order to evade the laws of their domicil with respect to license, banns, celebrants, etc. (which are matters of form), will not invalidate the marriage if valid where contracted. Such a marriage will be sustained even upon the parties' return thither. anxiety to evade the law of their or unsettled country, subject to no particular law, the law of their domicil is to be considered as following them and as still governing the contract. And perhaps the same principle applies to marriages contracted on board vessels on the high seas, in evasion of the domiciliary law, no matter what flag the vessel flies.10

But the general rule that the lex celebrationis regulates the forms and ceremonies incident to the contract of marriage, and that a marriage invalid in these respects by the law of the place where it is celebrated is invalid everywhere, is subject to

8 Dalrymple v. Dalrymple, 2 Hagg. Cons. 54; Phillips v. Gregg, 10 Watts (Penn.), 158, 36 Am. Dec. 167, 168; Dumaresly v. Fishly, 3 A. K. Marsh. (Ky.) 368; Hutchings v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; Jackson v. Jackson, 80 Md. 176, 30 Atl. 752, 754; Clark v. Clark, 52 N. J. Eq. 650, 30 Atl. 81.

9 Where the evasion of the domiciliary law is in respect to, not a matter of form, but a matter of capacity to marry, the courts of the domicil will sometimes, as we have seen, substitute the domestic law. See ante, § 73. 10 Norman v. Norman, 121 Cal. 620, 66 Am. St. Rep. 74. In this case, the parties left California, where they were domiciled, in a small boat, reached the high seas, and there agreed in the presence of the captain of the boat to take each other as man and wife, in evasion of the California law, requiring the consent of the parents. It was held that, the high seas being subject to the laws of no particular State, the law of California followed the parties, and the marriage was invalidated. The decision might, it would seem, have been placed upon a safer foundation. The boat was a California boat, and as such a part of the territory of California while on the high seas, and therefore subject to California law. Should a couple competent to marry elope from their domicil and be married on board a foreign ocean liner, in accordance with the law of the flag, but in evasion of the law of their domicil, it could hardly be maintained that the law of the domicil should control in formal matters.

an exception in the case of marriages celebrated in barbarous countries, or in a country whose law requires religious rites opposed to the tenets of the faith prevailing in the country to which the parties belong. The exception has its origin in a sort of moral or religious necessity. If the parties, in such case, conform to the requirements of their own domicil, the marriage will generally be valid."1

The con

§ 78. Substantial Validity of Marriage Contract. tract of marriage is an executed, not an executory contract, and is fully performed as soon as it is entered into. There can be no question of its performance elsewhere. For the same reason there can be no question of its breach at any other time or place than when and where it is entered into. If a "violation of the marriage contract" is alleged to have taken place after the marriage, as in case of desertion, cruelty, adultery, etc., it is an inaccurate and misleading use of words. In such cases, it is the marriage status or relation whose obligations have been broken, not the marriage contract.

Owing to this misconception, some courts have held that in

11 Story, Confl. L. § 118; Whart. Confl. L. §§ 175, 176; Ruding v. Smith, 2 Hagg. 390; Harford v. Morris, 2 Hagg. 430.

1 Many cases, it is true, speak of the performance of the marriage contract in places other than that where the marriage is solemnized, usually the parties' domicil. See Warrender v. Warrender, 2 Cl. & F. 488, 536; Vischer v. Vischer, 12 Barb. (N. Y.) 640, 646; Campbell v. Crampton, 2 Fed. 417, 425 ; Shreck v. Shreck, 32 Tex. 578, 5 Am. Rep. 251. These cases refer for the most part to the law governing the personal rights and obligations of the married pair, such as the violations of duty which may be grounds to dissolve the marriage. Another group of cases which fall into the same inaccuracy deal with the law governing the marital rights of the parties in property of the consort, subsequently acquired. See Le Breton v. Miles, 8 Pai. Ch. (N. Y.) 261, 265; Mason v. Homer, 105 Mass. 116; Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 23, 24; Kneeland v. Ensley, Meigs (Tenn.), 620, 33 Am. Dec. 168, 169.

In all questions of this character, arising after the marriage contract is entered into, the marriage contract itself has no influence. It is the marriage status, resulting from the contract, upon which these rights depend, and the law which controls that status, not that which governs the contract, is the "proper law" to determine such rights. The status may exist or "be per formed " elsewhere, but the marriage contract must in its nature be performed where it is entered into.

divorce cases the law of the place where the marriage was contracted must be looked to in order to determine on what grounds the marriage may be dissolved. It is now well established however that such matters are not violations of the marriage contract, but of the marriage relation and its obligations, and as such are controlled by the law which governs that status, that is, the law of the parties' domicil at the time of the divorce, regardless of the law of the place where the marriage was celebrated or where the acts complained of occurred.

But if the marriage is alleged to be voidable by decree of court for a cause existing at the time of the marriage contract, though not void per se, quite different considerations present themselves. Here the invalidating matter goes to the very root of the contract itself and renders it voidable. The status in this case may be dissolved, if at all, not for any violation of the marriage relation, for the parties may have been exemplary in their conduct towards each other, but merely because the contract upon which it is dependent may be avoided. This is a very different case from that of supervenient causes for divorce.

The subject is not free from difficulty. If the marriage is valid and free from objection in the State where it is solemnized, there can be no doubt that it will be held free from objection elsewhere, even though the parties should be domiciled in, or should afterwards remove to, another State, by whose laws such a marriage would be voidable ab initio.*

2 This was substantially the view taken in England by the earlier decisions. See Dicey, Confl. L. 270, note (1); Lolley's Case, 2 Cl. & F. 567; McCarthy v. De Caix, 2 Cl. & F. 568; Tooey v. Lindsay, 1 Dow. 117. See Arrington v. Arrington, 102 N. C. 491, 9 S. E. 200, 207.

8 This is now the rule even in England. See Dicey, Confl. L. 270; Wilson v. Wilson, L. R. 2 P. & D. 435, 442; Shaw v. Gould, L. R. 3 H. L. 55, 85. And it is so held in America with great unanimity. See Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372; Chase v. Chase, 6 Gray (Mass.), 157, 161; Watkins v. Watkins, 135 Mass. 83; Hunt v. Hunt, 72 N. Y. 217, 228, 28 Am. Rep. 129; Roth v. Roth, 104 Ill. 35, 44 Am. Rep. 81, 83; Van Fossen v. State, 37 Ohio St. 317, 41 Am. Rep. 507, 508; Felt v. Felt, 57 N. J. Eq. 101, 40 Atl. 436. But see Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132, 134; Norris v. Norris, 64 N. H. 523, 15 Atl. 19. The last two cases qualify the rule somewhat, it is believed, erroneously.

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4 Such would be the case if the marriage were absolutely void in the latter

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