The Validity of Void Divorces

Abstract

It is old learning that a decree of divorce, like any other judicial action, must have been rendered by a court which had jurisdiction of the person and of the subject matter. After some competition in the common law as to the proper doctrine in deter- mining requisites for jurisdiction of subject matter, it turned out that domicile was adopted as the point of reference for such questions. This, of course, caused no end of difficulty as soon as the law developed the capacity of spouses to have separate domiciles. These difficulties are being reasonably well ironed out, in theory at least, so that the rules for jurisdiction in divorce matters can be predicted with some degree of accuracy. Briefly stated, it appears that: (I) the domicile of both parties can divorce them; (2) a state where neither party is domiciled cannot divorce them; (3) the domicile of one party has jurisdiction to divorce where the absent spouse appears, or consents to or affords cause for the separate domicile; (4) possibly, in New York at least, the place where the parties have lived for an extended time as man and wife has jurisdiction to divorce. Jurisdiction of the person is acquired by personal service within the state, or, within limits set by the Federal Constitution, through service by publication upon absent residents where authorized by appropriate statutes.