Report No. 65
III. Domicile and Matrimonial Jurisdiction
2.9. Importance of domicile in relation to jurisdiction.-
The importance of domicile in the context of matrimonial jurisdiction was established beyond doubt by the Privy Council in Le Mesurier v. Le Mesurier, 1895 AC 517 (PC) holding that the Courts of Ceylon had no jurisdiction to dissolve a marriage unless the parties were domiciled in Ceylon. This decision was construed as also implying that English Courts would have no jurisdiction to dissolve a marriage unless the parties were domiciled in England-in the absence of special statutory provisions. The recent English Act of 1973,1 dealing with jurisdiction in matrimonial causes, now specifically provides as follows:-
"(2) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) either of the parties to the marriage-
(a) is domiciled in England and Wales on the date when the proceedings are begun; or
(b) was habitually resident in England and Wales throughout the period of one year ending with that date."
This provision, in a way, gives legislative effect to the concept of domicile as a basis for jurisdiction, though, as will appear from the section itself, it is no longer the exclusive basis.
1. Section 5(2), Domicile and Matrimonial Proceedings Act, 1973.
2.10. Domicile.- Domicile in relation to recognition of divorce may now be dealt with.
2.11. Recognition on the basis of domicile.-
The question of recognition had been involved in earlier English cases1 and their reliance on the rule of the domicile was undoubtedly a factor in the case of Le Mesurier, para. 2.6, supra.
1. (a) Rex v. Lolley Russ, 1812 Cr Cas 237: 168 Eng Rep 779;
(b) Warrender v. Warrender, (1835) 2 Cl Fin 438: 6 Eng Rep 1239 (HL);
(c) Dolphin v. Robins, (1859) 7 HL Cas 390: 11 Eng 156 (HL);
(d) Shaw v. Could, 1868 LR 3 HL 55;
(e) Harvey v. Farnio, (1882) 8 App Cas 43;
(f) Manning v. Manning, 1871 LR 2 P&D 223.
2.12. Story's view.-
When, in 1834, Story formulated the domicile rule in the U.S.A., the state of domicile was the state "to which the parties belonged,"1 the permanent domicile,2 or the "actual domicile" bona fide.3 The same conception appeared as late as 1883 in the eighth edition of his work.4
1. (a) Hopkins v. Hopkins, (1807) 3 Mass 158;
(b) Carter v. Carter, (1810) 6 Mass 263 cited, by Story, 189.
2. Inhabitants of Hanover v. Turner, (1817) 14 Mass 227 (231), cited by Story, (1834), 190.
3. Barber v. Root, (1813) 10 Mass 260, cited by Story (1834), 190.
4. Story Conflict of Laws, (8th Edn., 1883), para. 230.
2.13. Early English cases.-
In this connection, it is interesting to recall how the rule of domicile came into early English cases.1 It can be traced back to Story,2 and Story got it from some early Massachusetts decisions.3 These cases arose under a Massachusetts Statute (Mass. Acts 1785, c. 69), which provided that divorce suits might be brought in the country "where the parties live". The purpose was to remove divorce from the purview of the governor and council and place it within the purview of courts, because, in the words of the statute, "it is a great expense to the people of this state to be obliged to attend at Boston upon all questions of divorce, when the same might be done within the counties where the parties live."
The rule was appropriately based on considerations of convenience and it is not surprising that the English courts adopted it when they came to consider questions of divorce.
1. Is "Haddock v. Haddock" overruled? (1943) 18 Ind LJ 165. See also Cock Logical and Legal Bases of the Conflict of Laws, (1942), 467, 468.
2. Story Commentaries on the Conflict of Laws, (1834), 228 et seq.
(a) Richardson v. Richardson, (1806) 2 Mass 182;
(b) Hopkins v. Hopkins (1807) 3 Mass 158;
(c) Hanover v. Turner, (1817) 14 Mass 227.
2.14. Domicile firmly established.-
For some time, the test of residence prevailed as to recognition, but it ceased to be the law after the decision in Le Mesurier. In Salvesen v. Administrator of Austrian Property, 1927 AC 641 (685) the majority view of Niboyet's case was formally overruled. "It is established that the law of England recognises the competence and the exclusive competence of the Court of domicile to decree dissolution of a marriage." The general rule is relaxed by certain statutory provisions. But, subject to the statutory exceptions, the main rule still prevails,1 and has not been abrogated by the English Act2 of 1971.
1. Dunn v. Sarba, 1955 Probate 178.
2. See Chapter relating to 1971 Act, Chapter 10, infra.