The Gazette 1982

INCORPORATED LAW SOCIETY OF IRELAND

, ^

GAZETTE M

Vol. 76 No. 4

M a

1 9 8 2

In this issue

Comment 75 The Powers of the Police 77

Solicitors' Benevolent Association

Annual General Meeting, 1981

Practice Note: Opinion Letters

The Limits of Lawyer Advertising in

America Today

Ruling of Settled Jury Actions 91 Lady Solicitors' Golfing Society 91 Correspondence 92 Practice Note 93 Book Review 93 Licensing Applications 94 Professional Information 95

Executive Editor:

Mary Buckley

Editorial Board:

Charles R. M. Meredith, Chairman

John F. Buckley

Gary Byrne

William Earley

Michael V. O'Mahony

Maxwell Sweeney

Advertising:

Liam Ó hOisin, Telephone 305236

Th e views expressed in this publication, save where

other-wise indicated, are the views of the contributors

and not necessarily the views of the Council of the

Society.

Published at Blackhall Place, Dublin 7.

Comment. ..

. . . Why Not The Baby, Too?

N its report on "Domicile and Habitual Residence as

Connecting Factors in the Conflicts of Law" (pub-

lished in September 1981), the Law Reform Commission

does not quite come down in favour of abandoning the

Doctrine of Domicile as understood in the majority of the

common law countries. It expresses the provisional view

that it should be replaced by the concept of Habitual

Residence, peferring this to the concept of nationality

which prevailed in most of continental Europe until

recently and asks for submissions to be made to it on that

point. It is to be hoped that the submissions it receives will

support the abolition of the Doctrine and that, unlike

previous reports, legislation to implement the recommen-

dations will be introduced rapidly.

The temptation which may face the Government in

introducing legislation simply to abolish the principle of

the Wife's Dependant Domicile and to introduce various

other changes which the Commission recommend, if the

Doctrine of Domicile is to be retained, should be resisted.

It is true that the principle of the Wife's Dependant

Domicile is one of the most obnoxious aspects of the

Doctrine (and, perhaps, an unconstitutional one —see the

remarks of Mr. Justice Walsh in

Gaffney

[1975] I.R. 152, but it would be most unsatisfactory if

dealing with this and other defects of the present position

were to delay or prevent the abolition of the redundant

Doctrine itself.

The defects of the older Doctrine of Domicile and the

19th Century Doctrine of Nationality are becoming more

apparent every day and, though there may be problems

associated with the concept of Habitual Residence, they

are a great deal easier of resolution than the problems of

domicile.

It is axiomatic that in many areas of law a case which is

litigated to the highest Court will be balanced on a knife-

edge and decided, perhaps, by a majority of one among a

number ofjudges who have considered the case at various

levels. In suh circumstances, it is not surprising that there

is often very determined support, both inside and outside

the legal profession, for arguments which did not gain

favour with the Court. What distinguishes the law of

domicile is that, in many cases where doubt arises as to the

domicile of a person, usually one who is deceased, the

Court is faced with the choice between two decisions, each

of which could readily be described as nonsensical. If

there is any area in which the law can truly be said to be an

ass, it is in the area of domicile.

(Continued on P. 93)