Domicile. position as any foreigner, and although when he comes into this country without changing his domicile, he is bound to pay obedience to the English law, and amongst other things, can only contract a marriage here in accordance with its requirements; yet from the moment that he leaves this country and goes back to his own, he owes no further allegiance to the English law, and from that time forward his rights, and duties, and status can only be regulated by the law of the country of his domicile so long as he remains there. The President then pointed out that though the marriage was with an English woman, that had no bearing upon the question, because it was not a mere fiction, but a literal and absolute fact that a wife acquired the domicile of her husband, and accordingly when both parties returned to Scotland they took with them, so to speak, their status of married persons, and entirely withdrew themselves from the English jurisdiction; they took with them everything connected with the marriage, except the superfluous evidence of the parish register, and from that time forth while the man remained in Scotland, the place of his domicile, English law had nothing whatever to do with him. The Scotch Court, therefore, was possessed of the entire subject with which it had to deal. The decision in this case was affirmed both by the Court of Appeal (1) and by the House of Lords in 1882. In delivering judgment thereon, Lord Selborne said: "When the parties become husband and wife, what is the character which the wife assumes? She becomes the wife of the foreign husband in a case where the husband is a foreigner in the country in which the marriage is contracted. She no longer retains any other domicile than his, which she acquires. The marriage is contracted with a view to that matrimonial domicile which results from her placing herself by contract in the relation of wife to her husband whom she marries, knowing him to be a foreigner, domiciled and contemplating permanent and settled residence abroad. Therefore it must be within the meaning of such a contract, if we are to inquire into it, that she is to become subject to her husband's law, subject to it in respect of the consequences of the matrimonial relation, and all other consequences depending upon the law of the husband's domicile" (2). The student will now be enabled to apply the law of domicile to cases in which that question arises. The next step in our (1) 6 P. D. 35. (2) Per Selborne, L.C., in Harvey v. Farnie, 8 App. Cas. 43. relating to inquiry relates to jurisdiction of the Court in matrimonial Statutes Matrimonial Causes Act, 20 & 21 Vict. c. 85, establishing Matrimonial Causes Amendment Act, 21 & 22 Vict. c. 108 (2nd Aug. 1858). Matrimonial Causes Amendment Act, 22 & 23 Vict. c. 61 (13th Aug. 1859). Matrimonial Causes Amendment Act, 23 & 24 Vict. c. 144 (28th Aug. 1860). Matrimonial Causes Perpetuating Act, 25 & 26 Vict. c. 81 (7th Aug. 1862). Matrimonial Causes Amendment Act, 27 & 28 Vict. c. 44 (July, 1864). Matrimonial Causes Amendment Act, 29 Vict. c. 32 (June, 1866). Matrimonial Causes Amendment Act, 31 & 32 Vict. c. 77 (31st July, 1868). Matrimonial Causes Amendment (Evidence) Act, 32 & 33 Vict. c. 68 (9th Aug. 1869). Matrimonial Causes Amendment Act, 36 Vict. c. 31 (16th June, 1873). Matrimonial Causes Amendment Act, 41 Vict. c. 19 (27th May, 1878). Matrimonial Causes Amendment Act, 47 & 48 Vict. c. 68 (Aug. 1884). Greek Marriages Act, 47 & 48 Vict. c. 20 (1884). The Guardianship of Infants Act, 1886, 49 & 50 Vict. c. 27 (25th June, 1886), ante, p. 609. The Marriage Act, 1890, 53 & 54 Vict, c. 47 (ante, p. 999). nial causes and mat- Primary and secondary jurisdiction. CHAPTER II. PRIMARY AND SECONDARY JURISDICTION OF THE PROBATE, DIVORCE, The jurisdiction of the Probate, Divorce, and Admiralty Division in respect of matrimonial business is either primary or secondary. The primary jurisdiction of the Probate, Divorce and Admiralty Division relates to the following classes of business :1. Dissolution of marriage or divorce. 2. Nullity of marriage. 3. Judicial separation. 4. Restitution of conjugal rights. 5. (Practically obsolete) Jactitation of marriage. 6. Applications under the Legitimacy Declaration Act, 1858, 21 & 22 Vict. c. 93. The Court has also a secondary jurisdiction as subsidiary and incidental to its primary jurisdiction in respect of1. Alimony (1). 2. Custody of and access to the children of the marriage (2). 3. The application of damages recovered from adulterers (3). 4. Settlements of property of the parties (*). 5. Protection of the wife's property (5). 6. Reversals of decrees of judicial separation, decrees nisi for divorce, and decrees of nullity of marriage (6). In addition to these matters the Court has also, in addition to its concurrent jurisdiction (under the Judicature Act) as one of the Divisions of the High Court of Justice, a jurisdiction 1. In respect of appeals from the decisions of justices under the Matrimonial Causes Act, 1878 (post, p. 1024). 2. To enforce payment of alimony, &c., under the Debtors Act of 1869 (Rule 180 A). (1) 20 & 21 Vict. c. 85, ss. 17, 24, (3) 20 & 21 Vict. c. 85, s. 33. 22 & 23 Vict. c. 61, s. 5. (5) 20 & 21 Vict. c. 85, ss. 21, 25; 21 & 22 Vict. c. 108, ss. 6, 7. (*) 20 & 21 Vict. c. 85, s. 23; 23 & 24 Vict. c. 144, s. 7; 36 Vict. c. 31, s. 1. The Court also disposes incidentally of all motions and petitions incidental to the suits and matters which have been here enumerated. We shall now proceed to consider the business of the Divorce Court under the two main divisions of its primary and secondary jurisdiction. The husband's grounds. The wife's grounds. "Legal cruelty." CHAPTER III. PRIMARY JURISDICTION. I. DISSOLUTION OF MARRIAGE. The grounds upon which husband and wife respectively can claim to have a marriage dissolved are widely different. A husband can obtain a divorce on the ground of adultery by his wife, and on no other ground. A wife may obtain a divorce on any of the following grounds: (1) incestuous adultery; (2) bigamy with adultery; (3) rape; (4) sodomy or bestiality; (5) adultery and cruelty; or (6) adultery and desertion (1). Some of the offences here mentioned are defined by the Divorce Act itself, while some of the others have been repeatedly made the subject of judicial definition: "Incestuous adultery" is defined, for the purposes of the Act, to mean "adultery committed by a husband with a woman with whom if his wife were dead he could not lawfully contract marriage by reason of her being within the prohibited degrees of consanguinity or affinity." Bigamy is in like manner defined to mean "marriage of any person, being married, to any other person during the life of the former husband or wife, whether the second marriage shall have taken place within the dominions of Her Majesty or elsewhere." For the definitions of the other matrimonial offences which stand in need of definition for the purposes of the law of divorce, we are obliged to have recourse to the decisions of which there is no lack in the volumes of reported cases on the subject. What is cruelty, i.e. "legal cruelty" within the meaning of the Divorce Act? It is for the Court to direct the jury what acts constitute legal cruelty, and then for the jury to find whether the acts done amount to cruelty. The Court will not interfere unless there is actual personal ill-treatment or such threats as would reasonably excite in a mind of ordinary firmness. a fear of personal injury. (') Non-compliance with a decree for restitution of conjugal rights by a husband now amounts to desertion: 47 & 48 Vict. c. 68 (post, p. 1013). |