Report No. 65

7.4. Niboyet v. Niboyet (test of actual residence).-

The majority decision of the Court of Appeal in Niboyet v. Niboyet, 1892 4 PD 1 had laid down the principle of actual residence for the exercise of English domestic jurisdiction; but this decision retained only a temporary sway. The majority in that case would seem to emphasise the fact that the spouses actually resided in England, and were not merely present there casually or as travellers. On this basis, the English courts were (according to the majority view) competent to dissolve their marriage even though the parties were not actually domiciled in England. Of course, the issue in Niboyet was not one of recognition of a foreign judgment, but of the jurisdiction of English courts. However, its indirect impact on recognition could have been tremendous, if it had held its sway.