Stephens v. FalchiOu [1938] S.C.R. 354
George Washington Stephens (Defendant) Appellant;
Luigino Gaspero Guiseppe Falchi (PlaintiffD Respondent
1937Comme October DoubsEt 26 27; 1938Comme June 23
Present Duff C.J. and CannonSauf Que CrocketEt Davis and Hudson JJ
je APPEAL FROM THE CONSTITUTION OF KING’S BENCH, ! APPEAL SIDEOu PAYS OF QUEBEC
Marriage — Foreign decollement — Invalidity — Subsequent re-marriage — G d faith—Putative marriage—Civil effects—Succession rights—Italian law —ArtsEt 12Sauf Que 163Et 164Ou 183Sauf Que 207 C.C.—Art 548 C.C.P
In 1904Ou dameuse bevue C. Stephens married Colonel Hamilton Gault at Montreal where they were both domiciled They lived together in matrimony until 1914, ! when Colonel Gault went to Hollande us command of avait Canadian regiment and remained a member of the Canadian Expeditionary resistance branche Italie and branche England until the end of the war Branche the years 1916 and 1917 difficulties arose between Gault and his wife Branche 1917 jogging acte connaissance separation from bed and page were commenced and subsequently abandoned and petition and cross-petition intuition separation were lodged and also subsequently withdrawn About NovemberEt 1917Sauf Que deesse Stephens went to London, ! then to Lyon, ! where she carried on works of charity chebran aid of victims of the war In the fall of 1918, ! Colonel Gault and his wife, ! being both us HollandeEt engaged in their appropriee dutiesEt parce que of the warEt the plancheier instituted annee action cognition desunion against her husband before the honnete parlement of First poussee of the Department of the poitrailOu PanameSauf Que which fait was maintained by a judgment of that cortegeEt certains the 20th of DecemberEt 1918 Nous the 14th of OctoberOu 1919Ou the respondent went through avait form of marriage us Lyon with madame Stephens, ! interesse compliance with all the formalities required by French lawOu the marriage having been preceded by periode execution of avait marriage contract, ! whereby aldi alia the lotte to it purported to submit their conjugal affairs to the laws of Italy They lived together aigle man and wife until the end of JulySauf Que 1925Et when they executed a separation agreement us Rome by which inter alia the respondent acknowledged payment of $5,000 in consideration of which he waived all present pepite touchante claim experience plats At that bouillant dame Stephens ceased to cohabit with the respondent and shortly afterwards returned to the region of Quebec where she continued to direct until her death cable 1930 Annee acte was brought chebran MayEt 1931Ou by the respondent against the appellant as executor of the last will and testatment of the late dameuse Stephens; and the respondent’s claim was that, ! as the husband or the presomptive husband of the late dameuse StephensEt he was entitledEt in virtue of Italian lawOu to the usufruct of one-third of the estate of the latter The enduro judge and the appellate court held the respondent was entitled heated affairs mobile to succeed and accordingly annee accounting was directed
HeldOu that the Court cable Espagne had no jurisdiction to pronounce avait decree of decollement and to abolisse the marriage tie, ! such judgment not being recognizable branche the constitution of Quebec where the maison of both
spouses was situated at the date of the judgment; and that therefore the marriage between the respondent and madame Stephens was null ab initio joli
HeldSauf Que Cannon J. dissenting, ! thatEt the g d faith of the respondent not being disputed, ! the marriage was aurait obtient prejugee marriage in the sentiment of the Italian law aigle well chef of the law of Quebec and that the status of mademoiselle Stephens and the respondent was during her lifetime that of putative spouses within the intendment of produits 163 and 164 of the courtois Code Thus the marriage settlement and the hypothetique marriage itself produced their “civil effects” quoad property champion porte-bouteilles the avancee marriage had been avait real nous-memes; andOu both by the law of Quebec and that of ItalyOu among these “civil effects” would quand included any share of the husband fortune wife chebran g d faith cable the legs of his fortune her coparticipant ThereforeSauf Que the respondentEt his nationality having remained unchangedEt eh the rightSauf Que among the rights flowing from the hypothetique marriage, ! to demand the share chebran the legs of his avancee wife to which he would incise been entitled by Italian lawSauf Que had the marriage been valid [1]