Mr. Newel to Mr. Hay.

No. 770.]

Sir: I have the honor to inclose herewith copies of the conventions signed at The Hague, June 12, 1902, by the plenipotentiaries of Austria, Belgium, France, Germany, Hungary, Italy, Luxemburg, Netherlands, Portugal, Roumania, Sweden, and Switzerland; ratified by the Netherlands, July 24, 1903; ratifications deposited at The Hague, June 12, 1904, by Belgium, France, Germany, Luxemburg, Netherlands, [Page 527] Roumania, and Sweden, a majority of the original signatory powers; and published in the Netherlands official gazette, under date of July 6, 1904.

The conventions, three in number, have for their subjects the regulation of—

1.
Differences in the laws of marriage.
2.
Differences in the laws of divorce and separation.
3.
The guardianship of minors.

I have, etc.,

Stanford Newel.
[Inclosure 1.—Translation.]

Convention of June 12, 1902, for the settlement of conflicts of laws in matters regarding marriage.

(Between Germany, Austria-Hungary, Belgium, Spain, France, Italy, Luxemburg, the Netherlands, Portugal, Roumania, Sweden, and Switzerland.)

Article 1.

The right to contract marriage is regulated by the law of the nation to which each of the affianced parties belongs, unless some provision of this law refers expressly to another law.

Article 2.

The law of the place where the marriage is performed may prohibit the marriage of foreigners if such marriage should be contrary to its provisions regarding:

1.
The degrees of relationship or affinity within which marriage is absolutely forbidden.
2.
The absolute prohibition from marrying of persons guilty of adultery, on the grounds of which the marriage of one of them has been dissolved.
3.
The absolute interdiction from marrying, decreed against persons condemned for having, in concert, made an attempt against the consort of one of them.

A marriage concluded contrary to one of the above-mentioned prohibitions shall not be annulled provided it is valid according to the law indicated in article 1.

Under reservation of the application of the first paragraph of article 6 of the present convention no contracting government obligates itself to cause a marriage to be performed which, by reason of a previous marriage or of an obstacle of a religious character, would be contrary to its laws. The violation of an impediment to marriage of this nature can not involve the nullity of the marriage in countries other than that where the marriage was celebrated.

Article 3.

The law of the place where the marriage is contracted may permit the marriage of foreigners notwithstanding the prohibitions of the law indicated in article 1, when these prohibitions are based exclusively on religious reasons.

The other nations have the right not to recognize as valid a marriage celebrated under these circumstances.

Article 4.

Foreigners must, in order to marry, prove that they fulfill the conditions required according to the law indicated in article 1.

This proof must be furnished, either by a certificate of the diplomatic or consular agents representing the nation to which the contracting parties belong, or by any other means of proof, provided the international conventions or the authorities of the country where the marriage is performed acknowledge the evidence as sufficient.

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Article 5.

As far as the form is concerned, a marriage shall be recognized everywhere as valid provided it has been performed in accordance with the law of the country in which it has taken place.

It is understood, however, that countries whose laws require a religious ceremony may refuse to recognize as valid, those marriages which have been contracted by their citizens abroad without this provision of the law having been observed.

The provisions of the law of the nation with regard to publication of banns should be respected, but the failure to make such publications shall not involve the nullity of the marriage in countries other than that whose law has been violated.

An authenticated copy of the marriage certificate shall be transmitted to the authorities of the country of each of the contracting parties.

Article 6.

As far as the form is concerned, a marriage celebrated before a diplomatic or consular agent in accordance with his laws shall be recognized everywhere as valid, if neither of the contracting parties belongs to the nation where the marriage is performed, and if this nation does not oppose it. It can not oppose it if the marriage is one which would be contrary to its laws (merely) by reason of a previous marriage or an obstacle of a religious character.

The reservation of the second paragraph of article 5 is applicable to diplomatic and consular marriages.

Article 7.

A marriage which is null with regard to form in the country where it has been celebrated, may nevertheless be regarded as valid in other countries, if the form prescribed by the law of the nation of each of the parties has been observed.

Article 8.

The present convention applies only to marriages celebrated in the territory of the contracting nations between persons at least one of whom belongs to one of these nations.

No nation is obliged, by the present convention, to apply a law which is not that of a contracting nation.

Article 9.

The present convention, which applies only to the European territories of the contracting nations, shall be ratified and the ratifications thereof deposited at The Hague, as soon as a majority of the high contracting parties shall be able to do it.

A record of this deposit shall be prepared, and a copy thereof, duly certified, shall be sent through diplomatic channels to each of the contracting nations.

Article 10.

The nations which were represented at the Third Conference on Private International Law, but which have not signed this convention, shall be permitted to adhere to it unqualifiedly.

A nation which desires to adhere shall make known its intention not later than December 31, 1904, by means of a document which shall be deposited in the archives of the Government of the Netherlands. The latter shall send a copy thereof, duly certified, through diplomatic channels to each of the contracting nations.

Article 11.

The present convention shall take effect on the 60th day from the deposit of the ratifications or from the date of the notifications of adherence to it.

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Article 12.

The present convention shall continue in force for five years from the date of the deposit of the ratifications.

This term shall commence to run from the said date, even for nations which shall have made the deposit after that date or shall adhere to the convention later.

The convention shall be tacitly renewed every five years unless denounced.

Denunciation must be made known, at least six months before the expiration of the term indicated in the foregoing paragraphs, to the Government of the Netherlands, which shall notify it to the other contracting nations.

Denunciation shall have effect only as regards the denouncing nation, the convention remaining in force for the other nations.

In witness whereof the respective plenipotentiaries have signed the present convention and affixed thereto their seals.

[Inclosure 2.—Translation.]

Convention of June 12, 1902, for the settlement of conflicts of laics and jurisdictions in matters regarding divorce and separation from bed and board.

(Between Germany, Austria-Hungary, Belgium, France, Italy, Luxembourg, The Netherlands, Portugal, Roumania, Sweden, and Switzerland.)

Article 1.

Married persons may only file a petition for divorce when the law of their own nation and that of the place where the petition is filed both permit the divorce.

The same rule applies to separation from bed and board.

Article 2.

Divorce may only be applied for in those cases in which it would be permissible according to both the law of the nation of the married parties and that of the place where the petition is filed, even though for different causes.

The same rule applies to separation from bed and board.

Article 3.

Notwithstanding the provisions of articles 1 and 2, the law of the nation of the parties shall alone prevail, if the law of the place where the petition is filed so prescribes or permits.

Article 4.

The law of the nation of the married parties, referred to in the preceding articles, can not be invoked in order to constitute an act a ground for divorce when such act has taken place while one or both of the parties belonged to another nation.

Article 5.

A petition for divorce or for separation from bed and board may be filed:

1.
Before the jurisdiction which is competent according to the law of the nation to which the married parties belong.
2.
Before the competent “jurisdiction of the place where the parties are domiciled. If, according to the laws of their nation, the parties have not the same domicile, the competent jurisdiction is that of the defendant. In case of desertion, and in case of a change of domicile effected after the cause for divorce or separation has supervened, the petition may also be filed before the competent jurisdiction of the last common domicile. However, the jurisdiction of the nation to which the parties belong prevails to the extent to which it is alone [Page 530] competent to receive a petition for divorce or “separation from bed and board. The foreign jurisdiction remains competent in case of a marriage which can not give rise to a petition for divorce or for separation from bed and board before the competent jurisdiction of the nation to which the parties belong.

Article 6.

In a case in which a married couple are not authorized to file a petition for divorce or for separation from bed and board in the country where they are domiciled, either of them may nevertheless apply to the competent jurisdiction of said country in order to have the provisional measures taken which are provided by its laws for the discontinuance of cohabitation. These measures shall be sustained if, within the period of one year, they are confirmed by the jurisdiction of the nation to which the parties belong; they will not continue any longer than is permitted by the law of the domicile.

Article 7.

Divorce and separation from bed and board, granted by a competent court, according to article 5, chall be recognized everywhere, provided the clauses of the present convention have been observed and provided that, in case the decision was rendered by default, the defendant has been summoned in conformity with the special rules whose observance is required by the law of his or her country in order that foreign decisions may be recognized.

A divorce or separation from bed and board granted by a competent administrative authority shall likewise be recognized, if the law of the nation of each of the married parties recognizes such divorce or separation.

Article 8.

If the married persons are not citizens of the same nation, the laws of the last nation to which they both belonged in common shall be considered the law of their nation in the application of the preceding articles.

Article 9.

The present convention applies only to petitions for divorce or for separation from bed and board filed in one of the contracting nations, provided at least one of the parties to the suit belong to one of these nations.

No nation obligates itself, by the present convention, to apply a law which is not that of a contracting nation.

Article 10.

The present convention, which applies only to the European territories of the contracting nations, shall be ratified and the ratifications deposited at The Hague as soon as a majority of the high contracting parties shall be able so to do.

A record shall be prepared of this deposit, whereof a duly certified copy shall be delivered through diplomatic channels to each of the contracting nations.

Article 11.

Those nations which were represented at the Third Conference on Private International Law, but which did not sign this convention, are permitted to adhere to it unqualifiedly.

Any nation desiring to adhere shall make its intention known not later than December 31, 1904, in a document which shall be deposited in the archives of the Government of the Netherlands. The latter shall send a duly certified copy thereof through diplomatic channels to each of the contracting nations.

Article 12.

The present convention shall take effect on the 60th day from the deposit of the ratifications or from the date of the notifications of adherence.

Article 13.

The present convention shall remain in force for five years from the date of deposit of the ratifications.

[Page 531]

This period shall begin to run from the said elate, even for nations which shall have made the deposit after that date or which shall have adhered to the convention later.

The convention shall be tacitly renewed every five years, unless denounced.

Notice of denunciation must be given at least six months before the expiration of the period indicated in the preceding paragraphs to the Government of the Netherlands, which shall make it known to all the other contracting nations.

The denunciation shall take effect only with regard to the denouncing nation, the convention remaining in force for the other nations.

In witness whereof the respective plenipotentiaries have signed the present convention and fixed thereto their seals.

[Inclosure 3.—Translation.]

Convention of June 12, 1902, to regulate the guardianship of minors.

(Between Germany, Austria-Hungary, Belgium, Spain, France, Italy, Luxembourg, the Netherlands, Portugal, Roumania, Sweden, and Switzerland.)

Article 1.

The guardianship of a minor is regulated according to the law of his or her nation.

Article 2.

If the law of the nation to which the minor belongs does not provide any arrangement for the guardianship of the minor in case the latter has his habitual residence in a foreign country, the diplomatic or consular agent authorized by the nation to which the minor belongs may provide for such guardianship, according to the law of said nation, provided the nation in which the minor resides does not oppose it.

Article 3.

However, the guardianship of a minor having his habitual residence abroad is established and exercised in conformity with the local law, provided it is not or can not be constituted in accordance with the provisions of articles 1 or 2.

Article 4.

The existence of a guardianship established in conformity with article 3 does not prevent a new guardianship from being constituted by applying articles 1 or 2.

Should this be done, the fact should be notified as soon as possible to the Government of the nation where the guardianship was first established. This Government shall inform thereof either the authority who instituted the guardianship, or, if such an authority does not exist, the guardian himself.

The laws of the nation where the older guardianship was established determine the time when such guardianship shall cease in the case provided for by the present article.

Article 5.

In all cases the guardianship begins and terminates at the periods and for the causes specified by the law of the nation to which the minor belongs.

Article 6.

The administration of a guardianship extends to the person and to all the property of the minor, wherever situated.

This rule may admit of exceptions with regard to real estate subjected by the lex loci rei sitæ to special real estate regulations.

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Article 7.

Pending the establishment of a guardianship, and in all cases of urgency, the necessary measures for the protection of the person and the interests of a foreign minor may be taken by the local authorities.

Article 8.

When it becomes necessary to establish a guardianship for a foreign minor, the authorities of the nation in whose territory the minor abides should notify the fact, as soon as it reaches their knowledge, to the authorities of the nation to which the minor belongs.

The authorities thus notified shall make known as soon as possible, to the authorities who have given the notice, whether the guardianship has been or will be established.

Article 9.

The present convention applies to the guardianship of minors belonging to one of the contracting nations, who have their habitual residence in the territory of one of these nations.

However, articles 7 and 8 of the present convention apply to all minors belonging to the contracting nations.

Article 10.

The present convention, which applies only to the European territory of the contracting nations, shall be ratified and the ratifications deposited at The Hague, as soon as a majority of the high contracting parties shall be able so to do.

A record of this deposit shall be prepared, whereof a duly certified copy shall be delivered through diplomatic channels to each of the contracting nations.

Article 11.

The nations which were represented at the Third Conference on Private International Law, but which did not sign this convention, are permitted to adhere to it unqualifiedly.

Any nation which desires to adhere shall notify its intention not later than December 31, 1904, in a document which shall be deposited in the archives of the Government of the Netherlands. The latter shall send a copy thereof, duly certified, through diplomatic channels to each of the contracting nations.

Article 12.

The present convention shall take effect on the 60th day from the deposit of the ratifications or from the date of the notifications of adherence.

Article 13.

The present convention shall remain in force for five years from the date of deposit of the ratifications.

This term shall begin to run from the said date, even for nations which shall have made the deposit after that date or which may adhere to the convention later.

The convention shall be tacitly renewed every five years, unless denounced.

Notice of denunciation must be given, at least six months before the expiration of the term indicated in the preceding paragraphs, to the Government of the Netherlands, which shall make it known to all the other contracting nations.

The denunciation shall have effect only with regard to the denouncing nation, the convention remaining in force for the other nations.

In witness whereof the respective plenipotentiaries have signed the present convention and affixed thereto their seals.