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348

THE GREEN BAG

TWO RECENT CASES ON INTERSTATE MARITAL RELATIONS BY H. A. BIGELOW THE validity of marriage with a hus band or wife divorced from the former spouse and the consequential question of the legitimacy of the children of such mar riage are questions of such importance both legally and socially that the recent decision of the Supreme Court on the first of these, in the case of Haddock v. Haddock (New York Law Journal, April 27, 1906) cannot fail to be of interest. The essential facts in this case are as follows: The husband and wife both domiciled in New York were there married. Thereafter, as he alleged and as the Connecticut court whose decree was in question found, his wife deserted him and he then went to Connecticut and there ac quired a bona fide domicile, his wife retain ing her New York domicile. After being domiciled several years in Connecticut the husband filed there a bill for divorce; ser vice on the wife being made only by publi cation and by mailing a copy of the summons to her last known address, this being a com pliance with the Connecticut statutes on the point. The divorce was thereupon granted by the Connecticut court. Eighteen years later the husband being in New York, was personally served in a suit by his wife for a separation from bed and board and alimony. He pleaded the Connecticut decree. The referee before whom the case was tried re fused to admit the decree in evidence and found the facts as above stated, except that he found that the husband had deserted the wife, and decreed the separation and ali mony. It was on the refusal to admit the Connecticut decree as fixing the status of the husband that the husband went to the Court of Appeals of New York, and thence to the Supreme Court of the United States. A majority of the court, premising that the sole question before them was whether the New York courts had failed to give full

faith and credit to the Connecticut decree within the constitutional requirement, held that it had not so failed because the Con necticut court was without jurisdiction to pronounce a decree that could affect the status of a person domiciled in New York who had never submitted to the Connec ticut jurisdiction, and that the finding of the Connecticut court that the wife had de serted the husband was not conclusive against her. In the course of its opinion the court lays down "certain legal propositions irre vocably concluded by previous decisions of this court." These embrace, among others, the following: 1 i ) That when husband and wife are domi ciled in a state that state has jurisdiction to grant divorce, and (2) That when either party has acquired a bona fide domicile in a state and the other party though not there domiciled, submits to the jurisdiction, that state may grant a valid divorce. For these two propositions the court relies on Cheever v. Wilson, 9 Wall. 108, (1879). (3) That a husband cannot by wrong fully abandoning his wife in the state where they were domiciled therebv change either her domicile or the matrimonial domicile. Barber v. Barber, 21 How. 582 (1858). (4) That the state where the married couple had their last matrimonial domicile and where the husband is still domiciled has jurisdiction to grant divorce effective on both spouses even though the wife has in fact left the state and, so far as she can, taken up a domicile in another state. Atherton v. Atherton, 181 U. S., 155 (1900). To these may be added the proposition that where both parties are domiciled in one state an attempt by them both, while so domiciled, to. give another state by sub mission to it, jurisdiction to grant divorce