Moreover, (as has already been mentioned) 1 , doubt was expressed by Mr Justice Walsh in Gaffney v Gaffney 2 as to the constitutionality of the domicile of dependency in a case where a husband changes his domicile but a wife remains in the country of her domicile of origin. The same doubt must arise in regard to the rule as to the dependent domicile of a child in so far as it discriminates between the parents. (See the judgment of the former Supreme Court in Tilson 3 , referred to supra, at p. 2).
Fifthly, apart from the specific constitutional issue, the concept of domicile of dependency is out of harmony with the mainstream of the law relating to the rights and obligations of spouses – maintenance, succession and guardianship, for example – where the general principle of equality of rights applies.
The principal dispute that has been produced in favour of sustaining the concept of unity from domicile is that they simplifies inquiries from individual worldwide laws: instead of having to create regulations (which might be state-of-the-art) to deal with situations where there was actually zero preferred domicile, the idea of unity regarding domicile brings a somewhat simple and more quickly ascertainable solution more often than not, making sure that spouses in addition to their legal advisors will be able to dictate its position with a few rely on.
This argument may be called into question. Whilst it may be true that the unity dely, sex discrimination), which is unacceptable by contemporary standards and which, in any event, appears to offend against the Constitution. Moreover, the rules as to domicile of dependency in the case of a wife have had to be modified by statute or by judicial decision in order to allow the wife to sue in matrimonial causes; and, as has been shown supra 4 , the domicile of dependency rule has in fact been ignored by the use of the fiction of proleptic domicile. Moreover, even if a system of separate domiciles involves greater complexity, the task should be to devise a system capable of coping with, or reducing, this complexity rather than to accept a system that is otherwise unsatisfactory.
(A) Recognition Of Foreign DIVORCES
The balance of the argument appears to the Commission clearly in favour of the principle that a married woman should have an independent domicile – as, indeed, she may well have at the moment because of the Constitution and the judgments 5 (referred to supra) of the Supreme Court and of the former Supreme Court. Moreover, if the concept of proleptic domicile were applied in Ireland, a married woman could on the basis of a fictional domicile query in an Irish court a divorce obtained by her husband in a foreign jurisdiction (with which she had no connexion whatever except such as might be implied from the unity of domicile rule). The practical implications of giving a wife an independent domicile are discussed in Chapter 7 infra.
The law relating to the recognition in the State of foreign divorces would appear to be that a divorce obtained in a country of the common domicile of the spouses would be recognised here 1 , subject to the constitutional issue raised in the reservation of Mr Justice Walsh in Gaffney v Gaffney 2 , which has been referred to supra, and subject, in addition, to the acceptance by the Irish courts of the proleptic domicile rule adopted in other jurisdictions, which has also been referred to supra, p. 6. (It is, of course, possible that the Courts may adopt wider principles of recognition of foreign divorces at some time in the future thus enlarging the Conflict of Laws rules as they existed at the time (1 July 1937) of the enactment by the People of the Constitution). The effect of the domicile of dependency rule is that a wife is deemed to be domiciled in the country where her husband is domiciled, even though she may never have been there or desired to go there. Thus, where a husband domiciled in Ireland subsequently acquires a domicile in England, a divorce obtained by him against his wife, who has always lived here, might be recognised here subject to the constitutional doubt mentioned and to the granting of a proleptic domicile to the wife (if she wished to challenge the divorce). Conversely, on the same