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Report No. 65

11.4. The case of Niboyet.-

Neither the Matrimonial Causes Act, 1857, nor the Supreme Court of Judicature Act, 1873, contained any express provision limiting the jurisdiction of the court to decree dissolution of marriage by reference to the domicile of the spouses to the suit. That is the reason why, initially, there was some uncertainty and even judicial uneasiness as to the position in this regard. This is illustrated by Niboyet v. Niboyet, (1878) 4 PD 1 in which the Court of Appeal applied, but analogy to the new jurisdiction to grant dissolution, the rule applicable to the former jurisdiction exercised by the ecclesiastical courts in cases of nullity-the rule based on residence. This is an application of the general rule of construction of statutes that, in the absence of clear words to the contrary, they should be construed so as not to conflict with public international law, or with comity in the sense of generally recognised rules of private international law.

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