1. To effect a change of domicile a person must acquire a new habitation with the present intention of making it his home thenceforth, unless and until something uncertain or unexpected shall afterwards happen to induce him to adopt some other permanent home. The intention to make a new home must be an unqualified one, not conditioned on the happening of a future event.
2. At the time defendant went to Nevada to obtain a divorce, he intended never to return to New Jersey, but he had no intention of remaining in Nevada unless he could secure a suitable position in that state — a condition precedent to his making it his permanent home. Defendant therefore failed to effect a change of his domicile from New Jersey to Nevada.
3. The decree of divorce which defendant obtained in Nevada does not come within the protection of article IV, section 1 of the United States Constitution, not only because of the lack of domicile of either party in Nevada, but also because, the matrimonial domicile of the parties being in New Jersey, process in the suit was not personally served upon the respondent wife in Nevada, nor did she enter any appearance. Therefore, the validity of the decree in New Jersey must be determined by our own public policy.
4. The public policy of our state with respect to the recognition of decrees of sister states was declared by our legislature in the 1907 act ( R.S. 2:50-35), which directs the courts of New Jersey to recognize a foreign divorce decree as valid here, only when it is based upon the domicile of at least one of the parties in the jurisdiction in which it was rendered.
5. Following the enactment of the 1907 act, our cases have continued quite consistently to stress the element of fraud in the simulation of domicile in the foreign jurisdiction and in the misrepresentation of the facts to the foreign tribunal, and have continued to follow the rule set out in Fairchild v. Fairchild, 53 N.J. Eq. 678, to the effect that the adjudication by the foreign court of the fact of domicile is conclusive, unless that adjudication was procured by fraud.
6. The decree here in question was procured by such fraud as the cases contemplate. The Nevada court's adjudication of domicile was based upon the defendant's misrepresentation or suppression of the essential facts, and is, therefore, not binding upon the courts of New Jersey.
7. The proviso of R.S. 2:50-35 constitutes a positive prohibition to the recognition of defendant's Nevada decree as of any force or effect in New Jersey. Defendant, an inhabitant of this state, left New Jersey and within a few days went to Nevada for the purpose of obtaining his decree of divorce there, for a cause which occurred while the parties resided in this state.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the Court of Chancery by Advisory Master Herr.
For affirmance — THE CHIEF-JUSTICE, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 14.
For reversal — None.