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GAZETTE
JULY/AUGUS
T 1982
husband, irrespective of her domicile of origin or her
place of residence. That same U.K. Domicile and
Matrimonial Proceedings Act 1973 changed the law
in the U.K. in that regard, Section 2 providing that:
"the domicile of a married woman . .. instead of
being the same as her husband's by virtue only
of marriage, shall be ascertained by reference to
the same facts as in the case of any other
individual capable oC having an independent
domicile."
The Section went on to provide that where
immediately before the section came into effect (i.e.
July 1973):
"a woman was married and then had her
husband's domicile by dependence, she is to 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
coming into force of this section."
That change in the law in the United Kingdom
(including Northern Ireland) enabling a married
woman to have an independent domicile obviously
made it more difficult for the Supreme Court to
adhere to its previous position (see
Caffin
and
Gaffney
supra) that it would recognise decrees of
divorce granted in the country where the
parties were
domiciled.
Once it was possible for parties to a
marriage to have different domiciles a new position
had to be adopted. TheAÍ.
T. T.
case is one in which it
must have been likely that, having regard to the facts,
the wife would be held, at least in a U.K. Court, to
have revived her Irish domicile, if not on the occasion
of the move back to Ireland in 1974, certainly on the
occasion of the breakdown of the marriage in 1976.
One effect of this, would of course have been to
prevent the wife herself petitioning for a divorce in
the U.K. because she would not have fitted into
either of the two categories prescribed by Section 5
(2) of the 1973 Act (i.e. either domiciled in England
and Wales or habitually resident throughout the
period of one year ending on the date of the filling and
serving of the petition for divorce). Presumably the
Supreme Court, if the issue had come before it,
would have had to accept that the effect of the U.K.
1973 Act was to enable the wife and husband to have
seperate domiciles even though under Irish law the
wife's domicile would still have been that of her
husband's at least until the final decree of divorce.
The fact that the Supreme Court appears to have
accepted that the English Court was properly entitled
to assume jurisdiction under the provisions of
Section 5(2)(a) of the 1973 Act, (i.e. that the
husband
was at the time of the service of the petition domiciled
in England) must surely bring the Court closer to
having to recognise jurisdiction taken by a U.K.
divorce court based on the
habitual residence
of one of
the two parties' to a marriage under the provisions of
Section 5(2)(b) of that same Act.
In the light of such a possible development it is
even more important than ever for deserted wives
living in Ireland not to ignore petitions for divorce
served in U.K. proceedings brought by husbands,
who may,
prima facie
, have established the necessary
one year's habitual residence enabling the English or
Welsh Court to assume jurisdiction. It is ironic that
the wife in the
MTT
case could have mounted a
challenge to the jurisdiction of the English Court in
the divorce proceedings questioning the domicile of
the husband. While, as events proved, his domicile
was held to be English, there would have been at least
enough doubt to give the wife a prospect of achieving
a settlement of the English proceedings, including an
order for alimony, in consideration of her agreeing
to an uncontested divorce.
In the more typical case of the deserted wife whose
husband seeks a divorce in England, where both
parties have an Irish domicile of origin, a challenge to
the jurisdiction of the English Court may be seen to
be more optimistic even if the jurisdiction is claimed
on the basis of one year's habitual residence rather
that on domicile. In any circumstances where a
deserted wife (particularly where she has custody of
dependent children) is served with a U.K. divorce
petition by her husband, then, in the absence of a
clearly binding deed of separation providing for
index-linked maintenance, the wife should consider a
jurisdicitional challenge coupled with a claim for
alimony. Even if there is a prior deed of separation
providing for an appropriate level of maintenance for
the future, the wife should ensure that any U.K.
divorce decree acknowledges the existence of the
deed of separation and provides for alimony to be
paid at the appropriate rate in sterling equivalent to
the provisions contained in the Irish deed of
separation.•
Comment • . •
(Continued from p. 209)
(7,000 in about one hundred clubs) of the Irish
Federation of Women's Clubs, and a direct mail
contact with the welfare officers in major commercial
and industrial companies throughout the state.
The Society's first venture into corporate advertis-
ing may be considered a success and earned com-
mendation in an
Irish Times
leading article which said
(in part):
"The Incorporated Law Society, in launching
its "Make a Will Week", is doing a public service.
Its President, Mr Brendan Allen, has pointed to
the risks involved in people making wills on their
own. Sometimes, he says, these documents turn
out to be flawed or imprecise. In this day of
complexity of law and of business, the learning and
experience of the professional are not merely
desirable but necessary."
The project was one which supported the claim of
the Society that to be a solicitor is to be a member of a
caring profession. •
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