Report No. 65
11.2. The era before Le Mesurier.-
English Courts were not given authority to entertain divorce cases until 1857.1 The ecclesiastical courts had, in general, given only separation from bed and broad Jurisdiction in ecclesiastical courts depended on residence, not on domicile2, and Parliament, when it granted divorces, by, a private Act, granted divorces without regard to the petitioner's domicile3.
When exercising matrimonial jurisdiction under the Matrimonial Causes Act, 1857, English Courts did not in the beginning, definitively adopt the domicile rule. That rule came to be adopted later in 1895, in Le Mesurier v. Le Mesurier, 1895 AC 517 (PC). Prior to Le Mesurier, there apparently prevailed the "contractual theory", limiting jurisdiction to the courts of the country of marriage4. Cresswell, L.J. observed in Forster v. Forster, (1862) 3 Sw & Tr 144 (155),:
"I should have been very glad indeed if the legislature had said that the court had no jurisdiction except over persons domiciled in England. When Lord Cambell was Lord Chancellor, I asked him to bring in a bill to settle the question and to define my jurisdiction; but he said. 'I cannot do it. Whenever that question is raised, it must be decided upon legal principles. It cannot be defined'."
1. Matrimonial Causes Act, 1857 (20 and 21 Vict., C. 85).
2. Wall v. Wall, (1949) 2 All ER 927 (928) (Pearce, J.).
(a) Graveson Judicial Interpretation of Divorce Jurisdiction in the Conflict of Law, (1954) 17 Modern Law Review 501;
(b) Griswold Divorce Jurisdiction and Recognition of Divorce Decrees-A Comparative Study, (1951) 65 Harvard Law Review 193;
(c) Note, (1945) 22 Brit Y B Intl Law 264.
4. Dicey Conflict of Laws, (7th Edn., 1958), p. 290.