¹ § 23, item (1) concerns certain questions relating to real property.

The general rule as to non-recognition of foreign judgments, apart from the cases covered by a convention, is dealt with in detail in the leading textbooks: Skeie, Jon, Den norske Civilprosess 2nd edition (1940) Vol 2 pp. 40–48Google Scholar; and Alten, E., Tvistemaalsloven 3rd edition (1954) pp. 187–90Google Scholar; and in jurisprudential writing: Eckhoff, Torstein, Rettskraft (1945) pp. 350 et seq.Google Scholar, and Lando, Ole in Tidsskrift for Rettsvitenskap 1965 p. 271 and 1966 p. 115.Google Scholar

Conventions have been concluded and reciprocal recognition of judgments established with the following countries: Denmark, Finland, Iceland, and Sweden (16th March 1932—relating to “civil matters”, cf. article 1); Great Britain (12th June 1961—relating to “civil matters”, cf. article II). Negotiations with West Germany are at present in progress. None of these conventions includes judgments in matrimonial suits.

² For a detailed treatment of the convention, see Borum, O. A.: Lovkonflikter 4th edition (1957) pp. 195–197.Google Scholar

The provision for jurisdiction in cases of separation and divorce is found in article 7:

“Petitions for separation or divorce between nationals of the contracting States may be decided in the State where both spouses are domiciled, or where they last had a common domicile and where one of them continues to be domiciled.

If the petition cannot be decided in any of the States provided for in the foregoing paragraph, it may be decided in a State of which one of the spouses ia a national.

A divorce based on separation can in every case be granted in the State of which both parties are nationals.”

Article 22 states that decisions passed in accordance with article 7 shall be recognized in all the States parties to the convention.

³ What constitutes a “matrimonial suit” within the meaning of the Dispute Act is set out in § 416 of that Act:

Matrimonial suits are suits instituted for obtaining a judgment to the effect that a marriage subsists, does not subsist or is invalid, or in order to get it annulled, or in order to obtain a divorce or separation.

⁴ Similarly Eckhoff, : op. cit. p. 373.Google Scholar

⁵ See Martindale-Hubbel, : Law Directory (1964) vol. 4, p. 2854.Google Scholar

⁶ See as an example Supreme Court decision in Norwegian Supreme Court Gazette (Norsk Retstidende—abbreviated RT) 1918 vol. 2 page 60 where this is expressly stated, see also RT 1926 page 725 and RT 1931 page 931.

⁷ It is not easy to give examples where it expressly is stated that Norwegian law is applied as the lex fori, not as the lex domicilii of the parties, because aside from jurisdiction based on par. 4193 No. 3, one of the parties will always be domiciled in Norway. Legal writers, however, agree fully on the application of lex fori in these cases too, see Gaarder: Internasjonal privatrett (1963) p. 86Google Scholar, Supreme Court Judge H. Bahr in RT 1951 p. 129 and the Bill p. 6. It is also assumed expressly in the Bill p. 12 that this also shall prevail under the new par. 4193: “With regard to cases concerning separation and divorce it is evident that Norwegian law (lex fori) must continue to be applicable.”

⁸ This does not coincide with, for example, the Anglo-American concept of domicile but tends more towards the concept of “habitual residence” which has been applied in recent Hague-conventions. This is for instance stated by Allan Philip in Tidsskrift for Rettsvitenskap 1966 p. 498 with reference to the Danish concept of domicile which however coincide with the Norwegian domicile.

A person acquires domicile in a country in the Norwegian sense by residing there from his birth or by subsequently settling there with the intention of remaining on indefinitly or for a long time. However, the reference to a person's intention (animus) still has a decisive objective character the point being what the intentions normally will be of a person being in a factual position as in the case in question.

An established domicile is lost solely by leaving the country for good or by acquiring exclusive domicile in another country. The concept of domicile is in Norwegian law a uniform concept. It does not imply various forms as “domicile of origin” and “domicile of choice”. Also “dependent domicile”, for example for married women and minors, is unknown in Norwegian law.

⁹ The question will never arise for the courts, since it is only the District Governor who is entitled to grant divorce on the basis of an earlier judgment on legal separation, the point being that the decree of separation entitles the parties to a divorce, after one year if they agree on divorce, otherwise after two years at the demand of one of the spouses (cf. the Marriage Act § 43).

¹⁰ § 41. Spouses who find that they cannot continue their conjugal life may, if both agree, demand a licence for separation from the District Governor. Separation may be effected by a court judgment if the parties agree on separation, after having brought a separation or divorce suit before the court.

¹¹ See § 448d of the Danish Dispute Act, as amended by Act No. 216 of 31st May 1963.

This provision will not have full application as between the Nordic countries on account of the convention on matrimonial proceedings of 1931 article 7, referred to above in note 2.

¹² Of course the Norwegian suit ceases to be of legitimate interest to the parties when the foreign decree is recognized, unless it also comprises other claims. On this ground the Norwegian case may be waived. This is not of interest in the present connection.

¹³ As in Danish law, see Borum, op. cit. pp. 202–3.Google Scholar

¹⁴ Cf. Boriun, op. cit. pp. 203–4.Google Scholar