Eligibility to commence proceedings for marriage dissolution is dependent upon the applicant being a party to the marriage, and upon fulfilment of certain citizenship, domiciliary or residential requirements by either party. The requirement that only a party to a marriage may commence proceedings for its dissolution follows from the relevant paragraph of the definition of ``matrimonial cause'' that the proceedings must be ``between ... or by the parties to a marriage''. 1
The additional citizenship, domiciliary or residential requirements are that, at the date of filing of the application, either party to the marriage is an Australian citizen, or is domiciled in Australia, or is ordinarily resident in Australia and has been so resident for one year immediately preceding that date. 2 The complexities of the common law rules relating to domicile are considered elsewhere. 3 For the purposes of Commonwealth law, including matrimonial causes under the Family Law Act 1975 (Cth), the common law rules have been modified by the Domicile Act 1982 (Cth). 4 In particular, the Act abolishes the dependent domicile of a married woman; 5 provides that a person's current domicile continues until a new domicile is acquired; 6 and also makes clear that a person over 18, or a married person under 18, is capable of having an independent domicile. 7
Section 10 of the Domicile Act, follows the trend of common law authority 8 by confirming that the requisite intention necessary to establish a domicile of choice in a country is that of making one's home there indefinitely. Thus, in order to establish that someone has acquired a domicile of choice in Australia, it is necessary to prove that the person intends to remain here as a resident for a period ``unlimited in point of time''. 9 Whether this requirement is satisfied will be a question of fact in each case. In In Marriage of Emson [1980] FLC ¶90-803, for example, the Court found that the husband, who had been born in England and had been resident in Australia for only four days before filing for divorce, had come to Australia in the hope of obtaining a divorce from his wife, an American citizen. In other respects, his intentions as to future residence in Australia appeared to be extremely vague. Baker J was not prepared to find on these facts that the husband had acquired a domicile of choice in Australia. 10 In contrast, the wife in In Marriage of Barnett [1980] FLC ¶90-863 gave evidence that she had come to Australia from New Zealand in November 1979, gone back to New Zealand in December of that year to put her affairs in order, and then returned to Australia in January 1980 intending to remain here permanently. Ross-Jones J was satisfied that when she applied in early June 1980 for a divorce from her husband, who was then living in England, she had acquired a domicile of choice in Australia. 11
The alternative criterion to that of Australian citizenship or domicile is that either spouse has been ``ordinarily resident'' in Australia for one year immediately preceding the date of filing for divorce. This expression includes ``habitually resident''. 12 Although the notion of ordinary residence may acquire different meanings in different legal contexts, 13 it clearly does not require an intention to remain in the same place indefinitely. In Akbarali v Brent London Borough Council [1983] 2 AC 309 [[1983] 2 WLR 16; [1983] 1 All ER 226], a case concerning claims by overseas students for government education assistance, Lord Scarman was of the view that the phrase ``ordinarily resident'' referred to a person's ``abode in a particular place or country'' which has been ``adopted voluntarily and for settled purposes'' as part of the person's ``regular order of ... life for the time being, whether of short or of long duration''. 14 Although a person coming to Australia from overseas would have to show a minimum of one year's continuing connection with Australia to satisfy the requirement, it is important to emphasise that ordinary residence does not require constant physical presence. Similarly, even lengthy residence in one country may be consistent with the retention of the status of ordinarily resident in another country. For example, in In Marriage of El Oueik (1977) 29 FLR 171 [3 Fam LR 11,351; [1977] FLC ¶90-224], which raised the issue of recognition of an overseas divorce decree, 15 Toose J, in the New South Wales Supreme Court, held that the wife had not become ordinarily resident in Lebanon, despite having been present there from June 1973 to March 1975. When leaving Australia she had only intended to visit Lebanon for a short time; her extended stay there was a result of the failure of the husband, who had remained in Australia, to provide sufficient funds for her to return with the children.
