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 main argument which had been built in favour out of sustaining the idea of unity off domicile is that they simplifies issues regarding individual worldwide laws: instead of needing to devise regulations (which are often complex) to deal with times when you will find in fact zero popular domicile, the concept of unity off domicile will bring a fairly simple and more easily ascertainable services quite often, so as that partners and their judge advisors will be able to influence their condition with many count 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. Read More
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