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Report No. 65

V. Recommendation

15.9. Legislative device.-

The position, therefore, that emerges from the above discussion is that it is desirable1to provide that the rule that on marriage the wife acquires the domicile2 or nationality3 of the husband shall not apply in relation to the recognition of foreign divorces and separations. There are several ways of providing what we have stated above, and, so long as the object is achieved, it does not matter what drafting device is adopted.

1. Para. 15.7, supra.

2. Para. 15.3, supra.

3. Para. 15.4, supra.

We give below some drafts for the purpose.

Proposed section as to domicile and nationality of wife

(1) For the purposes of this Act, and subject to the provisions of sub-section (2), the domicile of a married woman as at any time after the commencement of this Act shall, instead of being the same as her husband's by virtue only of marriage, be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile.

(2) Where, immediately before the commencement of this Act, a woman was married and then had her husband's domicile by dependence, she shall be treated as retaining that domicile (as a domicile of choice, if it is not also her domicile of origin), unless and until it is changed by acquisition or revival of another domicile either on or after the commencement of this Act.

Alternative draft1

(1) For the purposes of this Act, and subject to the provisions of sub-section (2), the domicile of a woman who is, or has at any time been, married shall be determined as if she had never been married.

(2) Where, immediately before the commencement of this Act, a woman was married and then had her husband's domicile by dependence, she shall be treated as retaining that domicile (as a domicile of choice, if it is not also her domicile or origin), unless and until it is changed by acquisition or revival of another domicile either on or after the commencement of this Act.

1. The last alternative draft is preferable.

Another Alternative draft

(1) For the purposes of this Act, and subject to the provisions of sub-section (2), any rule of law whereby a woman on her marriage acquires her husband's domicile or nationality shall not be taken into account.

(2) Sub-section (2) as is main draft.



Recognition of Foreign Divorces Back




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