§ 50. Domicil of Wife contemplating Divorce. The mu nicipal law of almost all States requires that the complainant in a divorce suit should be domiciled in the State where the suit is instituted. Hence it becomes important in such cases to ascertain the domicil of the plaintiff.

It is now settled that an innocent wife may acquire a separate domicil from her husband for purposes of divorce, or probably in any case where her interests are antagonistic to his and are dependent upon the locality of the domicil, provided she actually resides there and actually raises the question in a judicial proceeding.1

Mr. Jacobs has expressed the opinion that this rule should not be extended beyond giving to the wife the right to sue for divorce in the State where she and her husband have resided together. But it is now well settled that the wife may go to an entirely new State, and having become domiciled there may sue for a divorce.

This rule is adopted in order to prevent the grave injustice that might be done the wife, if her domicil was held to follow her husband's, otherwise she would be compelled to follow him into any distant State he might select as his domicil, and after expense and trouble sue for her divorce in the forum selected by him, perhaps chosen for the very reason that its laws would deny her the relief she might obtain at home. And if she

1 See Jac. Dom. §§ 223-226; Cheever v. Wilson, 9 Wall. 108, 123–124; Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129; Hill v. Hill, 166 Ill. 54, 46 N. E. 751, 752; Chapman v. Chapman, 129 Ill. 386, 21 N. E. 806; Dunham v. Dunham, 162 Ill. 589, 35 L. R. A. 70, 77; Arrington v. Arrington, 102 N. C. 491, 9 S. E. 200; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248, 249; Burtis v. Burtis, 161 Mass. 508, 510; Blackinton v. Blackinton, 141 Mass. 432, 435; Harteau v. Harteau, 14 Pick. (Mass.) 187, 25 Am. Dec. 372; White v. White, 18 R. I. 292, 27 Atl. 506, 507; Van Fossen v. State, 37 Ohio St. 317, 41 Am. Rep. 507, 508; Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 35.

2 Jac. Dom. §§ 224, 224 a.

8 See cases cited, note 1, supra.

4 Jac. Dom. § 224; Whart. Conf. L. § 224; Cheever v. Wilson, 9 Wall. 108, 124; Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372; Burtis v. Burtis, 161 Mass. 508, 510; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. Rep. 129; Jenness v. Jeuness, 24 Ind. 355, 87 Am. Dec. 335, 337.

were relegated to the domicil of her married life, the State where she has lived with her husband, the inconvenience would still be great; she would be compelled to sue for divorce in her former home before she could remove to another State, or else to forego altogether her right to divorce.

This rule is prescribed in order to afford a better protection to the wife. Its adoption ought not to deprive the wife (at least from the standpoint of private international law) of the right she would have had without it of treating her husband's domicil as still her own, if she should prefer that course, and sue there.5

But if the allegation of the wife is not that the marriage relation should be dissolved by decree of the court, but that it is absolutely null and void, and she accordingly asks for a decree of nullity, the domicil of the alleged husband will not affect hers, for that would be to suppose the existence of a valid marriage, the very point in dispute."

§ 51. Domicil of Wife whose Husband applies for Divorce. If the husband, in contemplation of divorce, should leave the wife and acquire a new domicil in another State or country, it would in many instances result in great injustice to the wife, should the law require her domicil to follow his. For she would then, merely by construction of law, contrary to the actual fact, be subjected to the laws and jurisdiction of her husband's domicil, chosen by him under circumstances which would lead him to advance his own interests and to antagonize hers. The law will not ordinarily thus disregard the actual state of facts in such cases, nor content itself with idle presumptions

5 See Jac. Dom. § 224; Greene v. Greene, 11 Pick. (Mass.) 410. But see Wood v. Wood, 54 Ark. 172, 15 S. W. 459; Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 35. In Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 335, 337, this principle is disapproved on the ground that it gives the wife two domicils. It is manifest that this is not so: it only gives her a choice between two. Her domicil remains that of her husband until she sues for divorce. She may accept the general presumption of law which operates upon her up to the time her suit is instituted, and sue where her husband is domiciled; or she may accept the alternative of separating her domicil from her husband's, suing where she actually resides.

6 See Whart. Confl. L. § 224.

which the husband's conduct shows to have no foundation in fact.1 Hence it is well settled that the wife, as defendant in a divorce suit brought by her husband in his domicil, is to be considered from the time the suit is instituted as domiciled in the State where she actually resides, under whose jurisdiction and protection she actually is. The acquisition of a new domicil by the husband for purposes of divorce does not draw the wife into the same jurisdiction, unless she in fact removes thither permanently. Their interests are antagonistic.2

But a wife cannot thus obtain a separate domicil by her own wrong, so that if she deserts her husband he may sue for divorce in any State where he is domiciled, and she, though actually resident elsewhere, will be deemed in law to be domiciled with him, thus giving the court jurisdiction of both the parties.

§ 52. Domicil of Divorced Wife. We have seen that the law generally assigns the wife the domicil of her husband, because they are one person in law, because it is her duty to live with him, and because in fact she will usually do so. But when the parties are divorced, these reasons cease to operate altogether or in large measure.

Thus in a case of a divorce a mensa, or judicial separation, the law itself, through the courts, has decreed that the parties shall no longer be considered identical, as before, and that they shall thereafter live separate and apart. All the foundations upon which rests the presumption that the husband's domicil is likewise the wife's are thus swept away. Indeed the very opposite presumption at once arises, namely, that the parties have obeyed the decree of the court and have ceased to live together.1

1 Watkins v. Watkins, 135 Mass. 83, 86.

2 Story, Confl. L. 229 a, note; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. Rep. 129; Vischer v. Vischer, 12 Barb. (N. Y.) 640, 643; Borden v. Fitch, 15 Johns. (N. Y.) 121, 141, 8 Am. Dec. 225; Heath v. Heath, 42 La. Ann. 437, 7 So. 540; Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 336-337.

8 Whart. Confl. L. § 227; Loker v. Gerald, 157 Mass. 42, 31 N. E. 709 ; Burlen v. Shannon, 115 Mass. 438, 447-448; Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372; Hood v. Hood, 11 Allen (Mass.), 196, 199, 87 Am. Dec. 709; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. Rep. 129; Heath v. Heath, 42 La. Ann. 437, 7 So. 540.

1 So strong is this latter presumption that a child born more than ten

The fiction that the wife has her home with the husband being thus destroyed by the act of the law itself, there would seem to be no reason why the wife may not actually acquire a separate domicil, even though the dissolution of the marriage ties be not absolute. And such is now the general opinion."

In case of a divorce a vinculo, the parties have in general all the rights and capacities of unmarried persons, amongst other things the right to change their domicils at will. The fact that the woman is the offending party, and that the court is authorized to decree and does decree that she shall not marry again, would not affect her right in this particular; for such a penal disability cannot follow her into other States, nor does it prevent her status from being in general that of an unmarried woman.1

But if the divorce is invalid, as for example if it is granted by a court without jurisdiction, it is of no legal effect in freeing the parties from their marital obligations and disabilities. They are still bound by the rules regulating the relations of married persons, and the wife's domicil is still in law that of her husband's, though she actually resides elsewhere or marries another man."

The divorce, even though valid, does not necessarily ipso facto alter the wife's domicil. She retains the domicil she had immediately before the coverture was determined until she acquires another for herself; and neither her domicil of origin, nor her domicil before marriage, will play any part unless she actually lives there."

months after the decree of separation is prima facie presumed illegitimate. See 1 Minor's Insts. (4th ed.) 297; 2 Bright's Husb. & Wife, 262, Bac. Abr. Marr. & Div. (F.).

2 Jac. Dom. §§ 217, 219, 220, 221; Dolphin v. Robins, 7 H. L. Cas. 390; Barber v. Barber, 21 How. 582; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am, Rep. 129; Vischer v. Vischer, 12 Barb. (N. Y.) 640, 643; Borden v. Fitch, 15 Johns. (N. Y.) 121, 141, 8 Am. Dec. 225.

Jac. Dom. § 217; Whart. Conf. L. § 46; Dicey, Confl. L. 130; Warrender v. Warrender, 2 Cl. & F. 488, 525, 527.

4 Post, § 74.

See Dicey, Confl. L. 127-128; Dolphin v. Robins, 7 H. L. Cas. 390.
Jac. Dom. § 222; Dicey, Confl. L. 130. This principle has already been

§ 53. Domicil of Wife, where the Marriage is Voidable or Void. If the marriage is merely voidable by decree of court, and no decree has been obtained, there would seem to be no doubt that the wife's domicil would continue in general to be governed by that of the husband.1

If the marriage is absolutely void, when tested by the law properly applicable to determine the question, as by reason of the insanity of one of the parties (which in many States renders the marriage absolutely void) or because one of the parties has a consort still living and undivorced, it would seem clear that since there has never been a marriage, the woman's domicil would be identical with her supposed husband's only so far as, by her actual residence there with him animo manendi, she makes it so. The doubt, if there be any, is not whether she may be assigned the domicil of her supposed husband without actual residence there, but whether, even though she does actually reside there with him, she can be said to have acquired a domicil of choice.2

§ 54. Constructive Domicil of Idiots. -Idiots are those who from birth are so deficient in intellect as to be totally unable to manage their own affairs or to live without the protecting

applied to the case of an infant wife who has been widowed or divorced. Ante, § 45. It should be added that the domicil of a widow is governed by the same rules that govern that of a divorced woman. Story, Confi. L. § 46; Dicey, Confl. L. 130; Jac. Dom. § 222; Warrender v. Warrender, 2 Cl. & F. 488, 525, 527.

1 Warrender v. Warrender, 2 Cl. & F. 488, 527, 528. But after a decree avoiding the marriage ab initio for a cause existing at the time of the mar riage, it would seem that the wife would be deprived of her right to the husband's domicil from the beginning, save in so far as it is actually her own.

2 Jac. Dom. § 212; Concord v. Rumney, 45 N. H. 423. See Middleborough v. Rochester, 12 Mass. 363. In both of these cases (which were settlement cases) the marriage was void for insanity. In the first it was the wife who was insane; but the court held that if, in residing with her husband, she had sufficient understanding to choose her place of abode, her municipal domicil must be considered as located at the place where she thus dwelt. In the latter case it was the husband who was insane, and it is not clear that the wife actually resided at his domicil; it appears from the report of the case that she continued to reside where she was living at the time of the marriage. The decision was that her municipal domicil remained unchanged.