The Gazette 1982

INCORPORATED LAW SOCIETY OF IRELAND , ^ . GAZETTE M

M a y 1 9 8 2

Vol. 76 No. 4

Comment. ..

. . . Why Not The Baby, Too? I 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 v. 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) 75

In this issue Comment

75 77 83 85 87 91 91 92 93 93 94 95

The Powers of the Police

Solicitors' Benevolent Association Annual General Meeting, 1981 Practice Note: Opinion Letters The Limits of Lawyer Advertising in America Today Ruling of Settled Jury Actions Lady Solicitors' Golfing Society

Correspondence Practice Note Book Review

Licensing Applications Professional Information

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.