De Wurts v Wurts
| Jurisdicción | Perú |
| Fecha | 11 Julio 1932 |
| Emisor | Corte Suprema (Perú) |
| Número de expediente | 52 |
Territory — Occupation of Foreign Territory in Time of Peace Pending a Plebiscite — The Law Applicable in the Occupied Territory — Tacna-Arica.
The Facts.—The plaintiff was a Chilean woman who sought a divorce from her German husband before the Courts of Peru, where both parties lived. They had been married in Tacna in 1917. Tacna and Arica had been part of Peru, and were taken over by Chile in 1884 under the Treaty of Ancón, which terminated the war between the two countries. Under the provisions of the Treaty Chile was to occupy the provinces for ten years, at the end of which a plebiscite was to be held to determine the sovereignty over these territories. No plebiscite ever took place, and Tacna and Arica remained under the control and occupation of Chile until the Treaty of Santiago of June 3, 1929, between Chile and Peru.1 This Treaty divided the territory, with the result that Tacna returned to Peru.2
The Peruvian lower Courts held that the question of divorce depended upon the law of the marriage,3 Peruvian law recognised the possibility of divorce, while Chilean law allowed no divorce. The trial Court granted a divorce in accordance with
Peruvian law. On appeal to the Court of Tacna, the judgment was reversed. On appeal to the Supreme Court,Held: that the judgment of the Court of Tacna be reversed and that of the trial Court be affirmed. Chilean law did not apply to the marriage contracted in Tacna in 1917. The Court approved the dissenting opinion given by Cornego, J., in the Court of Tacna, according to which “there should be taken into account the fact that the reign of Chilean law in Tacna was precarious and based on force, and that it is not just that Peruvians who were obliged to perform their legal transactions according to that law should find themselves, when that state of force has ceased, still deprived of the benefits of a law which favours all other Peruvians.”
1 On this whole dispute see Dennis, Tacna and Arica (1931).
2 See Dennis, op. cit., p. 316; League of Nations Treaty Series, vol. 94, p. 401.
3 The Court of Tacna here referred to Articles 11 and 13 of the Treaty of Montevideo of 1889 on International Civil Law. See Martens, N.R.G., 2nd ser., vol. 18, p. 443.
The Treaty on International Civil Law received a remarkable application in Takesita v. Heisiro Maeda, decided on July 2, 1929: 35 Anales Judiciales, 78. This was a divorce action betweea two Japanese, who had been married in Japan. Although Japan was not a party to the Treaty on International Civil Law, made at Montevideo in 1889 between Peru, Argentina, Bolivia, Paraguay, and Uruguay, its rules were adopted on the ground that the Treaty “is the law of this State.” This Treaty was also the basis for the decision in Argentina American Films Corp. v. Empresa de Teatros y Cinemas Limitada de Lima, decided on June 17, 1929: 16 Revista del Foro, 84, on the question of proof of law of the State of New York, although the United States was not a party to the Treaty.
