Yelverton v Yelverton
| Jurisdiction | England & Wales |
| Judgment Date | 07 December 1859 |
| Date | 07 December 1859 |
| Court | Court for Divorce and Matrimonial Causes |
English Reports Citation: 164 E.R. 866
IN THE COURT OF PROBATE AND IN THE COURT FOR DIVORCE AND MATRIMONIAL CAUSES.
S. C. 29 L. J. P. 34; 6 Jur. (N. S.) 24; 1 L. T, 194, 8 W. R. 134. Considered, Burton v. Burton, 1873, 21 W. R. 649; Le Sueur v. Le Sueur, 1876, 1 P. D. 143; Niboyet v. Niboyet, 1878, 4 P. D. 16; Firebrace v. Firebrace, 1878, 4 P. D. 66; In re Mitchell, ex parte Cunningham, 1884, 13 Q. B. D. 418. Held no longer law, Rayment v. Rayment, [1910] P. 284. Referred to, Counties de Gasquet James v. Duke of Macklenburg Schwerin, [1914] P. 67; Perrin v. Perrin, [1914] P. 137.
866 YELVERTON V. YELVERTON 1 SW- & TR. 674. (Before the Judge Ordinary.} [574] yelverton v. yelverton. December 7,1859.-Suitfor Restitution of Conjugal . Rights.-Power of Wife to acquire a separate Domicil -Domicil to found Jut is-=j diction of Court.-Domicil of an Irishman after enlisting in the Army.-Ireland and Scotland.-Jurisdiction.-Tenducci's case, 1775.-The domicil of the husband is the domieil of the wife, and even where he has been guilty of such misconduct as would furnish her with a defence to a suit by him for restitution of conjugal rights, she cannot on that ground acquire a separate domicil for herself.-The word domicil 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 and Matrimonial Causes, but if he has never resided in England, except temporarily, and is not here at the time of the commencement of the suit, he is not subject to its jurisdiction.-A domiciled Irishman, by enlisting in a regiment in Her Majesty's service, the head-quarters of which are in England, does not thereby acquire an English domicil.-For the purposes of the question of the jurisdiction of the Court, Ireland and Scotland are to be deemed foreign countries. Circumstances of the case of Tenducci v. Tenducci, 1775.-A. intermarried with B , a major in H. M. Royal Artillery, at Edinburgh, in April, 1857, and in August, 1857, the marriage was celebrated in Ireland according to the rites of the Romish Church. In April, 1858, B. deserted A. at Bordeaux, and had since that time been stationed with his regiment at Edinburgh. B.'a domicil of origin was in Ireland, and he had never acquired a domicil in England. A. petitioned for restitution of conjugal rights, and described herself as resident in England. B. appeared under protest to the jurisdiction.-Held, that, aa there was no proof of B. having acquired an English domicil, and A.'s domicil was that of her husband, the Court had no jurisdiction to entertain the suit. [S. C. 29 L. J. P. 34; 6 Jur. (N. S.) 24; 1 L. T. 194, 8 W. R. 134. Considered, Burtm v. Burton, 1873, 21 W. R. 649; Le Sueur v. Le Sueur, 1876, 1 P. D. 143; Niboyet v. Ntboyet, 1878, 4 P. D. 16; Firebrace v. Fuebrace, 1878, 4 P. D. 66; In re Mitchett, exparte Cunningham, 1884, 13 Q. B. D. 418. Held no longer law, Rayment v. Rayment, [1910] P. 284. Referred to, Countess de Gasquet James v. Duke of Meddenburg-Schweun, [1914] P. 67 ; Perrmv. Perrtn, [1914] P. 137 ] This was a suit for restitution of conjugal rights, promoted by Maria Theresa Yelverton, described in the petition as of Maida Hill, in the county of Surrey (sic), against William Charles Yelverton. The petition alleged : (1) That on the 13th day of April, 1857, the petitioner was lawfully married under her [575] then name of Maria Theresa Longworth, spinster, to William Charles Yelverton, then and now a major in Her Majestyfs Royal Regiment of Artillery, at Edinburgh. (2) That the aforesaid marriage was and is a good and valid marriage according to the law of Scotland. (3) That the petitioner was afterwards, on the 15th day August, 1857, lawfully married to the said William Charles Yelverton at Killowen, in Ireland, according to the rites of the Roman Catholic Church. (4) That the aforesaid marriage was and is a good and valid marriage according to the law of Ireland. (5) That she subsequently Irred and cohabited with her said husband at divers places, and amongst others in Ireland, Edinburgh, Hull, and France, until the month of April, 1858, and that there has been no issue of such marriage (6) That the said William Charles Yelverton had, ever since the month of June, 1858, without any just cause lefused, and still refuses, both to permit her to cohabit with him, and also to render her conjugal rights. The petition concluded with a prayer that the Judge Ordinary would be pleased to declare that she was lawfully married to the said William Charles Yelverton, and to order that the said William Charles Yelverton take her home and receive her as his wife, and render her conjugal rights, etc. The citation and a copy of the petition were served on the respondent at Edinburgh. The respondent appeared under protest, and having obtained leave from the Judge Ordinary to plead to the jurisdiction of the Court, pleaded as follows:-That he the said W. C. Yelverton was at the time of the commencement of the suit, and still is, a major in the British army and a captain in Her Majesty's Royal Artillery stationed at Leith Fort, Edinburgh, in the kingdom of Scotland; and that he was at the time of the commencement of this suit, and hath sines continued to be, and still is, resident at Edinburgh aforesaid, and that his domicil of origin is in the kingdom of Ireland, 1SW.&TR.S78 YELVERTON V. YELVERTON 867 and that he has never abandoned such domieil or acquired any domicil elsewhere. Wherefore the said William Charles Yelverton insists that he ought not to be compelled to make any answer to the petition filed in this suit, and that this Court ought not ta take further cognizance thereof. The petitioner filed a replication to the effect, that before and at the time of the commencement of this suit the petitioner and [576] the respondent were respectively subjects of our lady the Queen, and that the petitioner before and at the time of the commencement of this suit was, and still is, resident in England, to wit, at No 12 Randolph Road, Maida Hill, in the county of Middlesex, and that the respondent before and at the time of the commencement of the suit was, and still is, on full pay of Her Majesty's Royal Regiment of Artillery, the head-quarters of which were and are at Woolwich, in the county of Kent, and within the jurisdiction of this Honourable Court, and by reason thereof the said respondent, at the time of the commencement of thia suit, was, and still is, domiciled at Woolwich aforesaid, and within the jurisdiction of tiis Honourable Court. Wherefore the petitioner insists that this Honourable Court ought to take cognizance of the matters contained in her said petition, and that the respondent ought to be compelled to make answer to the said petition. The cause came on for hearing on the 30th of July, 1859, before the Judge Ordinary. Dr. Phillimore, Q.C., and Mr G. Honyman, for the petitioner. Mr. James Anderson, Q.C., and Mr. W A. Clark, for the respondent. The counsel for the respondent began ; and at the close of their arguments, on the application of Dr. Phillimore, leave was granted to amend the replication on payment of the costs of the day. The following replications were then filed by the petitioner: (1) That before and at the time of the commencement of this suit, the petitioner and the respondent were respectively subjects of our lady the Queen. (2) That in February, 1840, the respondent, being of the age of fourteen years, left the house of his father at Belleisle, near Portumna, in the county of Galway (sic), in Ireland, where he was then residing, and came to England and entered the Royal Academy at Woolwich, in the county of Kent, as a,cadet, and there continued until the llth of January, 1843, when he obtained a commission as Lieutenant in Her Majesty's Royal Regiment of Artillery. (3) that the respondent has thenceforth continued on full pay [577] of the said Royal Regiment of Artillery, tbe head-quarters of which, before and at the time of the commencement of this suit, were at Woolwich aforesaid, within the jurisdiction of the Court. (4) That whan the respondent left Ireland as aforesaid, he did so with the intention of not returning thither, and that he had not since resided in Ireland, except for tbe purpose of visiting his father at Belleisle aforesaid, and except on the occasion mentioned in the third paragraph of the petition, when he went thither for the sole purpose of being there married to the petitioner. (5) That the respondent is not, and never was, seised or possessed of any house or land or any property whatsoever situate in Ireland. (6) That the respondent, on the 8th of June, 1859, in the Court of Session in Scotland, instituted against the petitioner a suit of Declaratory of marriage and putting to silence. (7) And that at the time of the commencement of the...
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