Sanders v Sanders [1953] FijiLawRp 7; [1946-1955] 4 FLR 73 (23 April 1953)

[1946-1955] 4 FLR 73

SUPREME COURT OF FIJI

Divorce Jurisdiction

JOYCE MAE SANDERS

v

BRUCE FITZROY SANDERS

Hyne, C.J.

April 23rd, 1953

Divorce-domicile of petitioner-whether residence creates domicile.

The petitioner who resided in Fiji was married to the respondent, an Australian, who had come to work in Fiji on 10th August, 1946, at Suva. The petitioner was deserted by the respondent in December, 1946, and therafter the petitioner instituted divorce proceedings, which failed on the ground that the respondent's Fiji domicile had not been proved. The petitioner then later again petitioned for a divorce.

HELD –

(1) Entry of appearance in proceedings is not evidence of domicile.

(2) Mere permanency of residence does not create domicile.

Cases referred to:-

Le Mesurier v Le Mesurier [1895] A.C. 532.
Jack v Jack, 24 Court Sess. Cas. 2nd Series.

Ann Bernard for the petitioner.

P. Rice for the respondent.

HYNE, C.J.-It is now necessary to consider whether the petitioner was domiciled in Fiji at the commencement of the proceedings, and whether the Court has jurisdiction to entertain the petition.

On her marriage the petitioner acquired the domicile of her husband. A married woman is always domiciled in the country where her husband has domicile, though she has never lived there, and any change of domicile of the husband during marriage results in an automatic change in the domicile of the wife.

It is contended by the petitioner that her husband has acquired a Fiji domicile. What is the evidence on this point? First of all it is said that he is living in Fiji. This is not disputed, but the mere fact of living in Fiji does not create a Fiji domicile. It is said that since coming to Fiji in June, 1946, from Australia-it is not disputed that his domicile of origin is Australia, and it is immaterial whether this be derived from a particular State-apart from a short leave in Australia in 1950, the respondent has been continually resident in Fiji. Mere residence, however, does not give him a Fiji domicile. It must be shown that in relation to Fiji he has the animus manendi