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Report No. 65

11.6. Developments after Le Mesurier-Act of 1937-Deserted wives.-

The rule relating to the wife's domicile-i.e., that she could have no separate domicile-caused hardship. The Matrimonial Causes Act, 1937 (Sir Alan Herbert's Act), removed some element of hardship in the case of English wives who were-(a) deserted by their husbands who thereupon acquired a foreign domicile, or (b) deprived of their remedies in divorce in England by their husbands being deported; in either case instead of having to proceed in the court of the husband's new domicile, the wife could, under the Act of 1937, resort to the English Court, if the husband was domiciled in England.

A change was1 made in the basis, of jurisdiction in divorce at the instance of deserted wives who had grounds for dissolution of marriage but whose husbands were domicile abroad2. Such wives could, under the Act of 1949, sue3 for divorce in England if they were resident in England and had been ordinarily resident in England4, for a period of three years immediately preceding the commencement of the proceedings.

This provision was re-enacted in section 18 of the Matrimonial Causes Act, 1950, section 40 of the Act of 1965 and in subsequent re-enactments thereof. There was imported into this section "a somewhat unusual statutory provison"5, namely, that in the exercise of this special form of jurisdiction, "the issues shall be determined in accordance with the law which would be applicable at the time of the desertion or deportation6. This provision of the Act of 1937 was, in substance, re-enacted in later revisions of the law.

1. Para. 11.5, supra.

2. Mr. Commissioner Latey, Q.C. Divorce and Nullity, (1955) 40 Transactions of the Grotius Society 111, 112, 113.

3. Section 1(1)(a), Law Reform (Miscellaneous Provisions) Act, 1949.

4. As to the expression "ordinarily resident", see Hopkins v. Hopkins, 1951 Probate 116: (1951) 2 All ER 1035.

5. Mr. Commissioner Latey, Q.C. Divorce and Nullity, (1955) 40 Transactions of the Grotius Society 111, 113.

6. Shaw v. Gould, 1868 LR 3 HL 55 (85).

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