A WIFE'S DOMICILE AND THE DIVORCE COURT [To the Editor
of TIM SPECTATOR.] Sm,—Mr. Justice Bucknill in a case last week touched upon possibly the one remaining legitimate grievance of a married woman under English law—for the alleged grievance as to taking her husband's nationality is as likely as otherwise to be of benefit to her, as when she goes to live in his country. The substantial grievance is that she also takes her husband's domicile, which entirely prevents her obtaining a divorce here if that domicile is not in England or Wales. This rule of law may give rise to monstrous injustice, as in the classical case—and unfortunately it has the authority of the Court of Appeal--of the young. English girl -who, about thirty years ago, married a French youth of under twenty-one years of age,
though at the ceremony, which took place in England, he described himself as over age. A false declaration of this kind does not invalidate a marriage celebrated in England, but the marriage of a French subject under age who marries without the consent of his or her parents may be declared invalid by French law at the instance of the parents. This young Frenchman after the birth of a child apparently got tired of his English wife, for he deserted her and returned to France. His parents duly procured a decree annulling his marriage without any objection on his part, and he married a young Frenchwoman. Thereupon his English wife sought divorce for bigamy or, alternatively, a decree of nullity, con- firming the French judgement.
Obviously as a matter of justice she should have had the one or the other, but the Court granted neither. The judges held that, since there was no cause or just impediment known to English law to the marriage, duly solemnised in England, that it was valid. The divorce they refused because, the husband being domiciled in France, it could only be granted by the French Court—which, of course, having already decreed a nullity, would have ruled that there was no marriage to dissolve. So she remained married to the man, who, in his own country, was living with another woman as his lawfully wedded wife, and the case, which is still authoritative, is so grossly unjust that the Divorce Court has since sought to escape from it on a subterfuge, but of course it can only be overruled by the House of Lords or Parliament.
Mr. Justice Bucknill held, not without difficulty, that an English woman seeking a decree of nullity of marriage (not divorce), on the ground that her foreign husband was already married when he went through the ceremony with her, can successfully petition in the English Divorce Court. If, however, the husband had defended the case, the result might have been different. The handicap of this English rule of law will be much increased if Mr. Herbert's Marriage Bill passes and divorce for desertion is made 'possible here. For example, if a husband deserts his wife and goes to live in the Irish Free State and acquires a domicile there, she will not be able to obtain divorce, for the law of Southern Ireland will not permit it. In the converse case of a wife deserting her husband and going to live out of England, he can obtain divorce, because she cannot change her domicile. This injustice to married women does not appear to be touched in Mr. Herbert's Bill, and is well worth the attention of Parliament as a break in the otherwise uniform chivalry of the " man-made law."—I am, Sir, &c., ALFRED FELLOWS.
5 New Square, Lincoln's Inn, W.C. 2.
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