The Gazette 1982

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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