Limping Marriages: Race, Class, and the Rise of Domicile-Based Divorce Jurisdiction in the British Empire

Abstract

In this article, I trace the development of domicile as the basis of divorce jurisdiction in English private international law. The maintenance of English domicile became closely related to the retention of ‘white’ identity, with white British subjects who became domiciled in non-white colonies such as India being relegated to racially ambiguous statuses. The domicile rule limited the remedy of divorce to those who were financially well-off and able to travel to the courts of the metropole since English courts refused to recognize divorce decrees granted by British Indian courts based on residence. As a result, innumerable British subjects who obtained a divorce in India remained married in Britain, i.e. were stuck in so-called ‘limping marriages’. To remedy this situation, a separate divorce regime was enacted for British subjects residing in India but domiciled in England and Scotland, but it replicated the class barriers of the original domicile rule. Law, therefore, played a significant role in the creation of the mutually constitutive but unstable categories of class and race.