The Domicile and Matrimonial Proceedings Act 1978
| Date | 01 March 1974 |
| DOI | http://doi.org/10.1111/j.1468-2230.1974.tb02376.x |
| Author | I. G. F. Karsten,T. C. Hartley |
| Published date | 01 March 1974 |
STATUTES
THE
DOMICILE AND MATRIMONIAL
PROCEEDINGS
ACT
1978
THIS Act, which came into force on January
1,
1974,
has made
important changes in the law of domicile, in the basis of the English
court’s jurisdiction over matrimonial causes, and
in
the law governing
the recognition of divorces.’
The Domicile
of
Married Women
Under the common law the domicile of a wife was always deemed
to be that of her husband, irrespective of whether the couple were
living together
or
even whether an order of judicial separation had
been obtained. This rule which was stigmatised by
Lord
Denning
in a well-known phrase as
“
the last barbarous relic of a wife’s
servitude,” has now been abolished by the Act.S In future a
wife’s domicile will no longer be the same as her husband’s
merely
because she is married
to
him:
it
will be decided on the facts-
her residence and intention-in the same way as in the case of a man
or
an unmarried woman. In practice, of course, it will usually be
the same as his; but this will not necessarily be the case even if they
are living together:
for
example,
if
a woman domiciled in England
marries in England a man domiciled in France and the couple
decide to live in England for a period but intend to settle eventually
in France, the wife will retain her English domicile (because she,
does not reside in France) and the husband will retain his French
domicile (because he intends to return there). Only when the
couple carry out their intention by going to live in France will the
wife’s domicile be the same as that of her husband.
The Domicile of Minors
Under the common law a legitimate child took the domicile of his
father
(so
long as the latter was alive)
‘
and was unable to obtain
a domicile of choice until he reached the age of majority. The
Act
now provides
ti
that an independent domicile can be acquired at the
age of
10.*
Again, of course, if the child
is
still in fact living with
1
The Act reforms the law
of
Scotland and Northern Ireland as well as England
:
but this note will1 be concerned
only
with its effect on English law.
’
8.
1.
4
One exception was where
a
girl married below the age
of
majority: she
exchanged dependency on her father for dependency on her husband. For the
position where the parents were divorced, see note
8
below.
5
8,
3
(1).
6
According to Lord Simon
of
Gtlaisdale, the reasons why this age, rather than
18,
was
chosen Kere,
first,
that it
is
the age at which a child can marry, and,
179
2
Gray
v.
Formosa
[l963]
P.
269,267.
To continue reading
Request your trial