FRAUD OF LAW IN PRIVATE INTERNATIONAL LAW
LexInter | June 23, 2007 | 0 Comments

FRAUD OF LAW IN PRIVATE INTERNATIONAL LAW

PRINCESS DE BAUFFREMONT STOP

Court of Cassation (Ch. Civ.) – March 18, 1878

(S. 1878. 1. 193, note Labbé)

(Princess of Bauffremont C. Prince of Bauffremont)

facts. – The 1st August 1874, the Court of Paris pronounced the legal separation between the Prince de Bauffremont, French citizen, and his wife, Belgian of origin, became French by the marriage. At that time, the French law applicable in the case did not allow divorce; this prohibition does not suit the princess. Taking advantage of the fact that the legal separation gave her the freedom to choose a separate domicile on her own, she moved temporarily to the Duchy of Saxe-Altenburg, of which she obtained nationality on May 3, 1875. Now subject to this German state, she recovered her matrimonial freedom thanks to its new national law which considers divorced Catholics who are legally separated. The princess can marry the one for whom she has undertaken the trip to Germany; on October 24, 1875, in Berlin,

The process displeases the Prince de Bauffremont, as for him still French and still married to the one who now claims to be the wife of another. He initiates a procedure to clarify his situation, asking the Court of the Seine, the annulment, on the one hand, of the naturalization obtained without his authorization, on the other hand, of the second marriage contracted during the existence of the first in contempt. of the prohibition of French law.

A judgment of March 10, 1876 gives him satisfaction. In a first reason, it is declared that “the princess of Bauffremont could not validly acquire without the authorization of her husband, the nationality of the State of Saxony Altenbourg and… she was still French at the time of the marriage contracted by she, October 24, 1875 ”. A second reason observes, on a conditional basis, that had he received the consent of the husband, the change of state sought by the wife would not have resulted from “the legitimate exercise of a faculty conferred by law. … [But] would only be the abuse… [and] that it would always be up to the courts to push back companies that are also contrary to good morals and the law ”.

On appeal from the Princess, the Court of Paris noted that the object of the debate was not the validity of foreign naturalization, on which it was judged to be without jurisdiction, but “the legal effects under French law” that this naturalization could produce. By decree of July 17, 1876, she judges that, without the husband’s authorization, the voluntary acquisition of foreign nationality was unfit to free the princess from French allegiance and therefore from the constraints of the French you; she adds that even if the spouses had agreed to it, they would not have had the power to evade, by a change of nationality, “the public order provisions of your French law which governs them”. So,On the naturalization in a foreign country of women separated from body in France and the incompetence of the courts in this matter , 1876).

The princess appeals in cassation. She suggests two ways. As understood by the Court of Cassation, the first does not concern private international law. This is not the case with the second, who accuses the Court of Appeal of not having been able to assess the regularity or the effectiveness of the change of nationality.

Appeal in cassation by the princess of Bauffremont. – the average. Violation of art. 215 and 217, C. civ., In that the Court, in the judgment under appeal, allowed the Princess of Bauffremont, married in Germany to the Prince of Bibesco, to sue on appeal to uphold the validity of her second marriage without marital or legal authorization.

2nd medium. Violation of art 3, § 3, 17, 108, C. civ .; false application of ss. 215 and 217, C. civ .; violation of art. 1124, § 3, of the same Code; violation of art. 227, C. civ., And of the law of May 8, 1816, in that the Court refused to assess your naturalization according to the law of the country where it was obtained, and then refused to assess the capacity for the woman to marry in second marriage according to your law under the empire of which she was placed by her naturalization,

stop

The courtyard; – On the first plea; – Whereas, if the married woman cannot be in judgment, in any degree of jurisdiction, without the authorization of her husband, it is not required by law that this authorization be express; that it can, when the litigation is engaged between two husbands pleading one against the other, be tacit and result in particular of what the husband, having caused the debate, called his wife there; that by activating it, the husband authorizes him to defend his cause contradictorily with him; that, in this case, the defendant (at    [* 44]  appeal) brought before the civil court of the Seine, against the plaintiff, his wife, an action for nullity, both of the marriage contracted by her, on October 14, 1875, in Berlin, with Prince Bibesco, and of the deed of naturalization passed in Altenburg on the previous 3 May; that respondent later on the appeal brought by the plaintiff from the judgment intervened, he accepted the debate, and, far from raising any exception, he, by formal submissions, contested the claims in which the plaintiff had failed in first instance, and asked the appellate judges to invalidate the acts whose cancellation had been the very object of his original request; that he thereby tacitly maintained and confirmed, at the second degree of jurisdiction, the tacit authorization which, at the first degree, resulted from what he had actuated his wife; that thus, it was satisfied the requirements of Articles 215 and 218 of the Civil Code both on appeal and at first instance; From which it follows that the first means is in fact lacking;

On the second ground, taken in its two branches – Whereas the plaintiff, Belgian of origin, became French by her marriage with the prince de Bauffremont, French subject; that, separated from body and goods, under the terms of the judgment of August 1, 1874, she nevertheless remained the wife of Prince de Bauffremont and French, the separation having the effect only of loosening the conjugal bond without dissolving it; that thus, she was French and married in France, at the time of the marriage contracted by her in Berlin with Prince Bibesco, following the naturalization by her obtained in the Duchy of Saxe-Altenbourg; that the judgment under appeal did not have â rule and did not rule on the regularity and legal value, in Germany and according to German law, of these acts, emanating from the sole will of the plaintiff; than,he also found in fact that, moreover, the plaintiff had applied for and obtained this new nationality, not to exercise the rights and perform the duties which result therefrom, by establishing her domicile in the State of Saxony- Altenbourg, but with the sole aim of escaping the prohibitions of French law by contracting a second marriage, and alienating her new nationality as soon as she acquired it ; that in deciding, in these circumstances, that acts thus carried out in fraud of French law and in defiance of commitments previously contracted in France were not enforceable against the Prince de Bauffremont, the judgment under appeal ruled in accordance with the principle of the French law on the indissolubility of marriage, and did not violate any of the provisions of the law invoked by the appeal;

For these reasons – Rejects.

March 18, 1878 – Court of Cassation (Ch. Civ.). – MM. Mercier, prem. near.; Plows, prem. av. gen. – MM Chambareaud and Sabatier, av.

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