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§ 201. “Divorce.”

Divorce is the termination and dissolution of the marriage relation, by process of law, for causes assigned. Among these causes are generally recognized such acts or omissions as are inconsistent and incompatible with, and in violation of, the marriage state, such as adultery, cruelty, and desertion; causes less generally recognized are the perpetration of crimes leading to imprisonment for a lengthened period; and persistence in habits that disqualify for the marriage state, such as habitual drunkenness and the neglect of matrimonial obligations. The object of this sub-section is to enable the Federal Parliament to abolish the varied and conflicting divorce laws which prevail in the States, and to establish uniformity in the causes for which divorce may be granted throughout the Commonwealth. This is considered advisable in order to avoid the great mistake made by the framers of the Constitution of the United States of America, who left the question to the States to deal with as they respectively thought proper. It has been well said, that if there is one defect in that Constitution more conspicuous than another it is its inability to provide a number of contiguous and autonomous communities with uniformity of legislation on subjects of such vital and national importance as marriage and divorce. At present persons who, according to the law of the State in which they reside, would have no right to a divorce, may become domiciled in another State by living there a certain time, and then, according to the laws of that State, may obtain a divorce for reasons which, in their own State, would have been insufficient. In some cases they may be divorced without a domicile. All these circumstances point to the conclusion that, unless we wish to repeat, in these communities, the condition of things which has obtained in America, it is necessary to provide for uniformity in the law of divorce. (Mr. R. E. O'Connor and Mr. I. A. Isaacs, Conv. Deb., Syd., p. 1080.)

By the old instructions to colonial Governors, still in use in the Australian colonies at the establishment of the Commonwealth, a Governor was required not to assent to any bill for the divorce of persons joined together in holy matrimony unless such bill contained a clause suspending its operation until the royal pleasure thereon was signified; otherwise they must be reserved. The royal assent to such reserved bills has been frequently refused. Thus a bill passed by the Parliament of New South Wales to enable a wife to obtain divorce on the sole ground of her husband's adultery, and one by Victoria authorizing a divorce for desertion for four years without reasonable cause, failed in the first instance to receive the royal assent, on the ground that they would occasion confusion throughout the Empire as to the status of persons so divorced, and of their offspring. Subsequently these bills received the royal assent and became law. (Todd's Parl. Gov. in Col. 2nd ed. 197–8.) The present instructions to the Governor-General of Canada do not contain the paragraph embodied in the old instructions above referred to, and in all probability it will not appear in the instructions to the Governor-General of the Commonwealth.

“I would ask hon. members to recollect the view we have taken about the condition of the English law with respect to marriage with a deceased wife's sister. I think every colony has petitioned the English Parliament on that subject. I know that when we were at home in 1887, we all agreed in making a particular request to the Imperial Government to bring in an Act to prevent the unpleasant and anomalous condition of the laws by which people, married in the colonies, when they reached England were not married. We only have to remember the attitude we took when we were unanimous amongst ourselves against the mother country, which has a different line of legislation, to understand that we ought to do that amongst ourselves which we wanted England to do towards us. What subject is more fitted for general legislation? In what subject


  ― 611 ―
do we want a universal law more than that dealing with the most sacred relations, that concern not merely the individuals who are parties to the contract, or whatever you please to call it, but also those who are to come afterwards? Anyone who seriously considers the social feelings of pain and grief, and worry and trouble, caused by a differentiation of the laws of the colonies, as between themselves, on this most vital subject, must agree that something ought to be done to prevent the anomaly.” (Sir John Downer, Conv. Deb., Syd., 1897, p. 1081.)

“A foreign tribunal has no authority, so far as consequences in England are concerned, to pronounce a decree of divorce à vinculo in the case of an English marriage between English subjects, unless such subjects are, at the time of such decree pronounced, bona fide domiciled in the country where that tribunal has jurisdiction, and the suit is prosecuted without collusion. (Shaw v. Gould, 37 L.J. Ch. 433. Dig. of Eng. Case Law, viii. p. 226.)

A wife's domicile is that of her husband, and her remedy for matrimonial wrongs must, as a general rule, be sought in the courts of that domicile; and, therefore, the wife of a man not domiciled in England cannot maintain a suit for restitution of conjugal rights if her husband has left the jurisdiction before the commencement of the proceedings. (Firebrace v. Firebrace, 47 L.J. Prob. 41. Id. p. 225.)

The word domicile has many meanings, according as it is used with reference to succession and other purposes. A person may have retained a foreign domicil for many purposes, and yet may be domiciled in England, so as to give jurisdiction to the court for divorce; but if he has never resided in England except temporarily, and is not there at the time of the commencement of the suit, he is not subject to its jurisdiction. (Yelverton v. Yelverton, 1 Sw. and Tr. 574. Id. p. 223.)

Great caution ought to be observed in allowing a petition for divorce to proceed in the English Divorce Court where there is ground for supposing that the parties are domiciled out of the jurisdiction. (Sinclair's Divorce Bill, 1897, App. Ca. 469. Dig. of Eng. Case Law, vol. vii. p. 730.)

When the domicile of the parties is English, the jurisdiction of the court is founded, though the marriage and adultery may have taken place abroad. (Ratcliff v. Ratcliff, 29 L.J. Mat. 171. Id.)

For the purposes of the jurisdiction of the Divorce Court, the British colonies, as well as Scotland and Ireland, are deemed to be foreign countries. (Firebrace v. Firebrace, 47 L.J. Prob. 41. Id. p. 733.)

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