SOTTOMAYOR V.

DE BARROS, 47 LJP 23 (1879)

FACTS: Ignacia Sottomayor and Gonzalo De Barros were
married in England in 1866. Subsequently, Sottomayor filed
a petition for divorce.
1. She alleged that:
a. She and De Barros were both natives of Portugal
and domiced in the same at the time of their
marriage
b. They were natural and lawful first cousins
c. The laws of Portugal provides that first cousins
are incapable of contracting marriage on the
ground of consanguinity
2. It appears that in 1858, petitioner Sottomayor, her
parents, and her uncle De Barros and his family
(respondent De Barros is the eldest sons petitioners
uncle) occupied a house in London. Petitioners
father stayed in London due to his health and De
Barros stayed there for the education of his sons and
their wine business. Sottomayor family and De Barros
family occupied the same house.
3. On June 21, 1866, Sottomayor, then 14 years old,
and De Barros, then 16, married in London (Reason:
To save the business of their family). No religious
ceremony followed. And although they lived in the
same house until 1872, Sottomayor and De Barros
never consummated the marriage.
4. De Barros entered his appearance but did not file a
reply.
5. The Queens Proctor (solicitor) then obtained leave to
intervene and file pleas.
6. The court ordered (based on the consent of both
parties) that the questions of law referred to the
Queens Proctor be heard first before the questions of
fact, without prejudice to either party
7. Sir Robert Phillimore refused to set aside the case on
the ground of incapacity of age, or collusion or fraud,

and held that marriage having been contracted in

England and valid by English law, cannot be declared
null on the ground that the parties were
incapacitated from contracting marriage under the
law of Portugal.
8. Petitioner appealed and the case was remitted to
Divorce Division on the questions of fact
ISSUE: WON a marriage solemnized in London between two
parties not domiciled in the same is valid
HELD: No. It is a well-settled principle in law that the
question of personal incapacity to enter into any contract is
decided by the law of domicile. In short, where personal
capacity depends on the law of domicile.
The marriage is invalid. The law of a country where marriage
is solemnized must decide all questions relating to the
validity of the ceremony by which the marriage is alleged to
have been constituted; but as regards questions on personal
capacity, it must depend on the law of the domicile, and if
the laws of any country prohibit its subjects within certain
degrees of consanguinity from contracting marriage and
treats such as incestuous, this imposes on the subjects a
personal incapacity which continues to affect them so long
as they are domiciled in said country and renders such
marriage invalid wherever it may have been solemnized.
Since both parties, being minor at the time the marriage
was contracted, their domicile follows that of their parents,
i.e. Portugal. Since the law of Portugal prohibits marriage
between parties who are related by consanguinity, it follows
then that the marriage between Sottomayor and De Barros
is void.