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Report No. 65

11.8. & 11.9. Position before 1973-summed up.-

The above position continued, in substance, until 1973, The position before 1973 can be conveniently described in the words of a widely used work1 on the subject-

"English courts have jurisdiction to entertain proceedings for the dissolution of a marriage and the pronouncement of a decree of divorce in the following circumstances, the first of which applies to a petition presented by either husband or wife and the others to a petition only by a wife:

1. If both parties to the marriage are domiciled in England at the time of the commencement of the proceeding [Leon (1967)]2;

2. If a wife has been deserted by her husband, or a husband has been deported from the United Kingdom, and he was immediately before his desertion or deportation domiciled in England [Act of 1965, section 49(1)].

3. If a wife is and has been ordinarily resident3 in England for a period of three years immediately preceding the commencement of preceding, and her husband is not domiciled in any other part of the United Kingdom or in the Channel Islands or the Isle of Man.

"The last two events conferring jurisdiction are exceptions to the general principle that divorce jurisdiction is based on domicile and were introduced to alleviate the hardship of wives who otherwise in these circumstances would have been compelled to institute proceedings for divorce abroad due to the rule that a wife's domicile is always the same as her husband's.

"Neither the nationality of either of the parties nor the, place where a marriage was celebrated is of any relevance to jurisdiction."

1. Judge Grant Family Law, (1970), p. 110.

2. Leon v. Leon, 1967 Probate 275 (Wife need not have residence).

3. A wife is ordinarily resident in England if she has her real home there. The three years period must be continuous, hut, for example holidays abroad do not interrupt it [Stransky v. Stransky, (1954).]

Recognition of Foreign Divorces Back

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