Fiorentino v. Probate Court

310 N.E.2d 112, 365 Mass. 13, 1974 Mass. LEXIS 621

• Court: Massachusetts Supreme Judicial Court
• Decided: March 29, 1974
• Status: Published

Opinions

Tauro, C.J.

These cases, argued together, present challenges to the constitutionality of our statutes which, in certain circumstances, require that a person be a resident of Massachusetts for two years before a libel for divorce may be filed. G. L. c. 208, §§ 4-5.¹ This two year durational residence requirement has recently been declared unconstitutional by the United States District Court, District of Massachusetts, Rosado v. Smith (Civil Action No. 72-3361-W),² a decision which, while entitled to our respect, is not binding on us. United States ex rel. Lawrence v. Woods, 432 F. 2d 1072 (7th Cir. 1970), cert. den. sub nom. Lawrence v. Woods, 402 U. S. 983 (1971).

The libellant³ in each of these cases was married in the State of New York, lived together with his or her spouse in that State, and moved to Massachusetts only after the alleged cause of divorce had occurred in New York. Lucio Fiorentino moved to Massachusetts on April 1, 1972. On December 13, 1972, the Probate Court for Suffolk County granted him a decree that he was living apart from his wife for justifiable cause. On April 10,1973, Fiorentino executed and attempted to file in the Probate Court a libel for divorce. That court refused to accept the libel since the alleged cause of divorce occurred outside of Massachusetts and Fiorentino had not resided in the Commonwealth for the two years required by the statute. Fiorentino then filed a petition for mandamus to compel the judges of the Probate Court to accept the libel. After hearing, a single justice of this court, at the request of the parties, reserved and reported the case without decision to the full court.⁴

Carmen Fernandez moved to Massachusetts in September, 1971.⁵ In the fall of 1972 she filed a libel for divorce in the Probate Court for Suffolk County. Confronted with the libellant’s challenge to the constitutionality of the two-year residence requirement, the probate judge reported the case to the Appeals Court.⁶ The case is before us on direct appellate review. G. L. c. 211A, § 12, inserted by St. 1972, c. 740,§ 1.

The statutes under challenge operate to define and limit the jurisdiction of the courts of Massachusetts to grant divorces. Old Colony Trust Co. v. Porter, 324 Mass. 581, 586 (1949). General Laws c. 208, § 4, forbids the granting of a divorce in two situations: where the parties have never lived together as husband and wife in Massachusetts, and where the legal cause of.the divorce occurred outside of this Commonwealth. There are certain exceptions to these basic rules. Even if the parties had not lived here as husband and wife, a divorce may be decreed if the cause occurred within Massachusetts and the libellant lives here when the libel is filed. § 5. Also, if the cause occurred elsewhere a divorce may be decreed by Massachusetts courts if the parties had lived together as husband and wife in Massachusetts prior to the occurrence of such cause and one of them lived here at the time the cause occurred. § 4. Finally, in the same situation of a cause occurring elsewhere, a divorce may be decreed if the libellant has lived in Massachusetts for two years before filing the libel. § 5. Thus, the two-year residence requirement applies only to those divorce libellants who rely on a cause of action which occurred outside of Massachusetts and which did not affect a marriage previously existing in the Commonwealth.

These statutory restrictions on the divorce powers of Massachusetts courts were presumably intended to prevent the bringing of migratory causes of action in Massachusetts courts and to ensure the validity (i.e., full faith and credit in other jurisdictions) of the decrees of Massachusetts courts against collateral attack by limiting proceedings in divorce actions to situations where the Commonwealth has some substantial connection with the dispute being adjudicated. In the typical case these interests are served by the court’s refusing to proceed unless it has personal jurisdiction over both parties to a dispute (in personam jurisdiction) or it has jurisdiction over the thing, or res, that is the subject of a dispute (in rem jurisdiction). Jurisdiction over causes of action for divorce, however, is strictly neither in personam nor in rem. Williams v. North Carolina, 317 U. S. 287, 297 (1942). “Under our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domicil.” Williams v. North Carolina, 325 U. S. 226, 229 (1945). See Shaw v. Shaw, 98 Mass. 158 (1867). Thus, it is established that State courts may exercise divorce jurisdiction based solely on the domicil⁷ of the libellant even if the libellee neither appears nor is personally served and even though the parties never resided as husband and wife in the forum State. Williams v. North Carolina, 317 U. S. 287, 298-299 (1942). In such a case, however, it is essential that the libellant’s claim to domiciliary status in the forum State be a legitimate one; otherwise, the court’s power to dissolve the marriage is a mere chimera vulnerable to collateral attack in another jurisdiction. Williams v. North Carolina, 325 U. S. 226 (1945). Andrews v. Andrews, 188 U. S. 14 (1903). Cohen v. Cohen, 319 Mass. 31 (1946).

It may be because jurisdiction founded solely on the ■ libellant’s domicil was thought to be so fragile that the Legislature has imposed the two-year residence requirement of G. L. c. 208, § 5. In effect, however, § 5 creates an irrebuttable presumption that a divorce libellant is not a domiciliary of Massachusetts until he or she has resided in the Commonwealth for at least two years. Such a presumption surely serves to protect the divorce courts of Massachusetts from actions based on fraudulent claims of domicil by temporary residents. The present libellants insist, however, that it also operates to deprive domicil-iaries such as themselves,⁸ namely, those who have resided here for less than two years, of their constitutional rights of due process and equal protection.⁹ We hold that the two-year residence requirement does work a deprivation of equal protection in these cases and, therefore, that it was unconstitutional to bar these libellants from prosecuting their divorce libels solely on the ground that they were not two-year residents of Massachusetts.

The two-year residence requirement operates to classify Massachusetts domiciliaries into two groups based on length of residence and to treat those groups quite differently with respect to access to divorce courts. Under recent United States Supreme Court decisions classifications based on length of residence are constitutionally suspect because they burden the “fundamental” right to travel by penalizing new arrivals in a State relative to longer-term residents of that State. Shapiro v. Thompson, 394 U. S. 618 (1969). Dunn v. Blumstein, 405 U. S. 330 (1972). Memorial Hosp. v. Maricopa County, 415 U. S. 250 (1974). In the Dunn case the Supreme Court overturned Tennessee statutes which barred persons from registering to vote (and thus from voting) who had not resided in the State for at least one year and in the county of registration for three months. Because those durational residence requirements both penalized persons on the basis of recent travel and also denied a fundamental political right (voting), the court held that they could not stand absent a showing by the State that it had a compelling interest in imposing the requirement. Likewise, in the cases before us the two-year residence requirement penalizes persons merely because they have recently traveled interstate.¹⁰ In addition, the benefit withheld by the requirement (i.e., access to the divorce courts) is one that merits constitutional protection. See Boddiev. Connecticut, 401 U. S. 371 (1971). Therefore, as was said in the Dunn case, “[W]hether we look to the benefit withheld by the classification ... or the basis for the classification ... we conclude that the State must show a substantial and compelling reason for imposing durational residence requirements.” 405 U. S. at 335 (1972).

We believe that the Commonwealth does have a substantial and compelling reason in these cases. Certainly its interest in protecting its courts from fraudulent invocations of their jurisdiction is sufficient reason for imposing requirements aimed at ensuring that divorce libels are brought only by legitimate domiciliaries of Massachusetts. This is not enough, however, to save the two-year residence requirement. The Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States requires not only that there be a compelling State interest for a classification based on length of residence, but also that the classification be precisely tailored to achieve its legitimate objective and that there be no alternative, less burdensome, means to achieve the State’s goal. Dunn v. Blumstein, 405 U. S. at 343 (1972). Memorial Hosp. v. Maricopa County, 415 U. S. 250, 268 (1974). The issue, therefore, comes down to this: Is the durational residence requirement the least drastic means by which the jurisdiction of the Commonwealth’s divorce courts may be protected from fraud? We hold that it is not.

In the Dunn case, the Supreme Court held that the State’s interest in ensuring “the ‘purity of the ballot box’ ” was indeed compelling, 405 U. S. at 345, but the means chosen to fulfil that interest were imprecise and unnecessary. The court found that the durational residence requirements were ill-suited to the goal of preventing non-domiciliaries from casting fraudulent votes because a potential registrant could just as easily lie about the length of his residence as he could about his place of domicil. 405 U. S. 346-347 (1972). See also Memorial Hosp. v. Maricopa County, supra, at 268. In addition, the State had provided an alternative means of discovering and preventing fraud through its voter registration system which permitted a case-by-case review of the legitimacy of an individual’s claim of domicil. 405 U. S. 346-348. See also Memorial Hosp. supra, at 268.

We believe the same analysis and reasoning apply here. Clearly, divorce libellants intent on perjuring themselves might just as readily lie about the length of their residence in Massachusetts as about the fact of their domicil. Thus, the two-year requirement could serve to bar only those who tell the truth. And the argument for a case-by-case determination of domicil, without reliance on any arbitrary presumptions of nondomicil based on length of residence, is in one respect even stronger here than in the Dunn case because divorce libels are tried individually by judicial tribunals which are precisely suited to require proper evidence and to make the findings of fact which are necessary to determine domicil. To urge that the judges of our Probate and Superior Courts are incapable of making proper determinations of domicil in divorce cases is to argue that they are incapable of performing the functions of their offices, namely, finding the facts and applying the law. We see no reason to arrive at such a conclusion.

Those who contend otherwise apparently do not agree that judges can make determinations of domicil on a case-by-case basis with sufficient accuracy to protect the Commonwealth’s divorce courts from fraud. They would therefore uphold the durational residence requirement as a necessary evil. In effect, they perceive the problem of fraudulent domicil claims in divorce cases as so serious as to outweigh any harm caused to legitimate domiciliaries who are barred from divorce courts because they do not satisfy the residence requirements. The difficulty with this viewpoint, however, is that the fraud with which they are so concerned is hypothetical only, while the harm to legitimate domiciliaries is actual and immediate.

In the first place, it is highly unlikely, in view of our strict limitation on the substantive grounds for divorce,¹¹ that this Commonwealth will be a very appealing jurisdiction for migratory divorce seekers even in the absence of a durational residence requirement. Thus, the possibility of a substantial incidence of fraudulent invocations of Massachusetts divorce jurisdiction depends on the purely speculative possibility that the Legislature will some day liberalize the substantive grounds for divorce. In the meantime, of course, legitimate domiciliaries are denied access to divorce courts in order that the Commonwealth may protect those courts from speculative as well as hypothetical fraud.

More importantly, we do not believe that it can be shown that fraudulent claims of domicil can be perpetrated so effectively as to defy detection by judges who act affirmatively to prevent such fraud. In contexts other than divorce we rely on trial court judges’ ability to make valid findings of domicil. See, e.g., Plymouth v. Kingston, 289 Mass. 57 (1935); Rummel v. Peters, 314 Mass. 504 (1943). Although it is likely true that the interest of a person in obtaining a dissolution of his or her marriage may provide greater motivation for perjury in divorce cases than in other situations, it is, nevertheless, also true that determination of domicil remains “mainly a question of fact,” Tuells v. Flint, 283 Mass. 106, 109 (1933), as to which there exists “a myriad of tangible criteria” which are “highly relévant” to that determination. Mon Chi Heung Au v. Lum, 360 F. Supp. 219, 222 (D. Hawaii 1973). Among such criteria length of residence would be one, but only one, relevant consideration. Any evidence indicating an intention to establish roots would be material.¹² See Comment, 30 Md. L. Rev. 367, 380, n. 113 (1970). Given such evidence and observation of the libellant’s demeanor, and backed by the dual sanctions of the perjury statutes¹³ and the potential invalidity of a decree issued without jurisdiction, a judge sitting in a divorce case can make a reasonably accurate determination whether the libellant’s claim of Massachusetts domicil is bona fide.¹⁴

It is worth noting that G. L. c. 208, §§ 4 and 5. themselves contain implicit legislative assertions of confidence in the ability of the judges of Massachusetts divorce courts to determine domicil without having to rely on durational residence requirements. For example, the statutes in several situations require a determination whether the parties ever “lived together as husband and wife in this commonwealth.” This court has consistently construed that provision as requiring a showing that the parties were domiciled here as husband and wife. Winans v. Winans, 205 Mass. 388, 393 (1910). Field v. Field, 236 Mass. 256 (1920). Thus, to determine whether jurisdiction is proper on the ground that the parties lived here as husband and wife, a judge must make a determination of domicil without reliance on a durational residence requirement. Likewise, in so far as the words “lived” in the final clause of § 4 and “resident” in § 5 are construed to require domicil rather than mere residence,¹⁵ to that extent the Legislature has declared that judges are capable of making case-by-case determinations of domicil. Such determinations become no more difficult just because domicil of the libellant is the sole connection between Massachusetts and the marriage, as in the cases before us.

It has been suggested that the two-year residence requirement is justified because only after such a period is the Commonwealth’s interest in a resident sufficient to override the injustice which may result to the libellee in a divorce proceeding where only the libellant appears personally. There are two problems with this argument. First, any injustice which may be caused the absent spouse (because of notice by mail or by publication, or lack of means to enter an appearance) will not be mitigated but in fact might be exacerbated by a two-year delay which makes it increasingly unlikely that the nonresident could be located for notice purposes.¹⁶ Second, there is no substantial justification for the assertion that the Commonwealth’s “interest” in a resident somehow increases in proportion to the length of residence. Absent some other valid basis for classification, the Commonwealth’s obligation is to treat all residents alike, regardless of length of residence. Dunn v. Blumstein, 405 U. S. 330 (1972).

Finally, we note that, in addition to its invalidity under the Equal Protection Clause, the two-year residence requirement may well be vulnerable to due process attack on two grounds. First, the Supreme Court has with increasing frequency asserted that “[sjtatutes creating permanent irrebuttable presumptions have long been disfavored under the Due Process Clause of the Fifth and Fourteenth Amendments.” Vlandis v. Kline, 412 U. S. 441, 446 (1973). See Stanley v. Illinois, 405 U. S. 645 (1972); Cleveland Bd. of Educ. v. LaFleur, 414 U. S. 632, 644 (1974). See also Bell v. Burson, 402 U. S. 535 (1971). The presumption against domiciliary status raised by G. L. c. 208, §§ 4 and 5, is certainly “irrebuttable” and is arguably as “permanent” as the presumption struck down in the LaFleur case, supra (teachers’ mandatory maternity leave requirement creates presumption of physical incapacity during final months of pregnancy).¹⁷ Because the statutory presumption now before us infringes on certain constitutionally protected interests of divorce libellants (see discussion below), and because that presumption is “neither ‘necessarily nor universally true,’ ” Cleveland Bd. of Educ. v. LaFleur, supra, at 646, it may be that the two-year residence requirement is unconstitutional under the Supreme Court’s due process analysis of irrebuttable presumptions. Cleveland Bd. of Educ. v. LaFleur, supra.

Second, a related but separate due process issue arises from Boddie v. Connecticut, 401 U. S. 371 (1971), in which the Supreme Court held that it is constitutionally impermissible to bar indigents from divorce courts solely on the basis of their inability to pay a filing fee. Emphasizing that “marriage involves interests of basic importance in our society” (id. at 376) and that the mechanism for dissolving marriage is monopolized by the State, the majority asserted that the State’s interest in charging court fees was not sufficient to override the interests of in digents in having access to divorce courts. It therefore held that the filing fee requirement violated the due process rights of indigent divorce libellants. In the cases now before us, the libellants argue that the two-year residence requirement operates to deny them access to divorce courts just as surely as the filing fee requirement struck down in the Boddie case denied such access to indigents. Therefore, conclude the libellants, because the State can put forward no interest in the durational residence requirement substantial enough to override the interest which domiciliaries of less than two years’ residence have in access to the divorce courts, the two-year residence requirement of G. L. c., 208, §§ 4 and 5, is unconstitutional under the Boddie holding.

Regardless of the proper due process analysis, however, we conclude that the two-year residence requirement of G. L. c. 208, §§ 4 and 5, at the very least, is unconstitutional as violative of the Equal Protection Clause. A durational residence requirement is simply too imprecise a means for accomplishing the goal of restricting Massachusetts divorces to legitimate Massachusetts domiciliaries.¹⁸ In addition, there is available the more precise, less burdensome alternative of case-by-case judicial determination of domicil. Given the certainty that the present system bars legitimate domiciliaries access to our divorce courts, we hold that the harm thus caused outweighs any harm which might result from the speculative possibility of fraudulent claims to domicil. The libellants in the cases now before us should be permitted to prove the legitimacy of their assertions of Massachusetts domicil without having to wait out an arbitrary two-year period as required by the offending statute.

Case No. S-7837 is remanded to the Probate Court for further proceedings. The petition for writ of mandamus in case No. S-15, 276 is allowed.

So ordered.

1 § 4 “A divorce shall not, except as provided in the following section, be decreed if the parties have never lived together as husband and wife in this commonwealth; ñor for a cause which occurred in another jurisdiction, unless before such cause occurred the parties had lived together as husband and wife in this commonwealth, and one of them lived in this commonwealth at the time when the cause occurred.”

§ 5, as appearing in St. 1969, c. 162. “If the libellant has lived in this commonwealth for two years last preceding the filing of the libel if the cause occurred without the cpmmonwealth, or if the libellant is a resident of the commonwealth at the time of the filing of the libel and the cause occurred within the commonwealth, a divorce may be decreed for any cause allowed by law, unless it appears that the libellant has removed into this commonwealth for the purpose of obtaining a divorce.”

2 There is no consensus among the courts which have recently passed upon the constitutionality of durational residence requirements in divorce cases. Compare Wymelenberg v. Syman, 328 F. Supp. 1353 (E. D. Wis. 1971); Mon Chi HeungAu v. Lum, 360 F. Supp. 219 (D. Hawaii, 1973); Larsen v. Gallogly, 361 F. Supp. 305 (D. R. I. 1973) (all striking down durational residence requirements), with Shiffman v. Askew, 359 F. Supp. 1225 (M. D. Fla. 1973); Sosna v. Iowa, 360 F. Supp. 1182 (N. D. Iowa, 1973), review granted 415 U. S. 911 (1974); Whitehead v. Whitehead, 53 Hawaii 302 (1972); Porter v. Porter, 112 N. H. 403 (1972); Place v. Place, 129 Vt. 326 (1971) (all upholding durational residence requirements).

3 For convenience, we refer to petitioner Fiorentino as a “libellant.”

4 In the mandamus proceeding the respondent Probate Court judges have been represented by a special assistant attorney general. Both in a brief and during oral argument the special assistant attorney general has thoroughly and effectively advanced the arguments for upholding the constitutionality of the two-year residence requirement. Thus, the reason for our reluctance to decide the constitutional issue in Peace v. Peace, 362 Mass. 536 (1972), i.e., that the case had been argued on an ex parte basis, is not present here.

5 Although Fernandez has now fulfilled the residence requirement, and presumably may now file a proper libel under the statute, we nevertheless shall proceed to a decision because the companion case is still at issue and because of the importance and recurring nature of the issue presented. See Dunn v. Blumstein, 405 U. S. 330, 333, n. 2 (1972).

6 The judge reported the case pursuant to G. L. c. 215, § 13. In the dissenting opinion, the Justices suggest that this case is not properly before us because § 13 does not authorize the reservation and report of a case in which there has been no interlocutory decree and which has not been heard for final determination. We do not agree that this case has not properly been reported. By reporting the case the judge has decreed, in effect if not precisely in form, that he has no jurisdiction to hear the case. The question of Probate Court jurisdiction is one which we have previously considered on report under § 13 where the report is preceded by a decree dismissing the libel for lack of jurisdiction. Bennett v. Florence, 347 Mass. 707 (1964). There is no practical reason to distinguish this case from the Bennett case. In any event, the jurisdictional issue is one of public importance. “[I]t has been fully argued to us, and even if we had found it necessary to dismiss the report as not properly before us, we should neverthless have felt warranted in expressing our views.” Commonwealth v. Haddad, 364 Mass. 795 (1974), and cases cited.

7 The meaning of “domicil,” as opposed to “residence,” has often been explained. “In general it is said to be the place of one’s actual residence with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode.” Tuells v. Flint, 283 Mass. 106, 109 (1933). “[T]he acquisition of a domicil does not depend on the length of the residence.” Winans v. Winans, 205 Mass. 388, 392 (1910).

8 In the present postures of these cases, we accept the libellants’ assertions that they are bona fide domiciliaries of Massachusetts (assertions which must eventually be established at trial).

9 The libellants do not dispute the Commonwealth’s interest in restricting divorce jurisdiction to legitimate domiciliaries. Their challenge is directed only at the durational residence requirement.

10 No showing of actual deterrence of travel need be made. It is enough to show that the classification in question penalizes the exercise of the right. Dunn v. Blumstein, 405 U. S. at 339-340 (1972). Although not all waiting periods are “penalties,” see Shapiro v. Thompson, 394 U. S. at 638, n. 21 (1969), we believe, in light of Boddie v. Connecticut, 401 U. S. 371 (1971), that denial of access to divorce courts imposed by the two-year residence requirement amounts to a penalty in the constitutional sense. See Memorial Hosp. v. Maricopa County, 415 U. S. at 258-260 (1974). Thus, the cases before us are distinguished from the cases in which the Supreme Court declined to strike down State statutes requiring one year of residence as a condition to lower tuition at State institutions of higher education. Starns v. Malkerson, 401 U. S. 985 (1971), affg. 326 F. Supp. 234 (D. Minn. 1970). Sturgis v. Washington, 414 U. S. 1057 (1973), affg. 368 F. Supp. 38 (W. D. Wash. 1973). Compare Vlandis v. Kline, 412 U. S. 441 (1973). A denial of lower tuition does not amount to a constitutional penalty. Memorial Hosp. v. Maricopa County, 415 U. S. at 260, n. 15 (1974).

11 See G. L. c. 208, §§ l and 2.

12 Factors which might be considered would be: whether the libellant has a Massachusetts driver’s license and automobile registration; whether he or she has purchased a home or has leased an apartment in the Commonwealth; the term of any apartment lease; whether any children have been brought to live in Massachusetts; whether personal property, including household goods, has been brought here; whether permanent employment has been obtained in Massachusetts; whether there is evidence of abandonment of previous domicil, e.g., cancellation of bank accounts, leases, memberships, and so forth, sale of property, and issuance of change of address notices. This list is not meant to exhaust the possible factors to be considered.

13 See G. L. c. 268, §§ 1-4.

14 In addition, the burden of proving his or her domicil will be on the libellant. Mellon Natl. Bank & Trust Co. v. Commissioner of Corps. & Taxn. 327 Mass. 631, 638 (1951).

15 It is not clear whether the words “lived” and “resident” in §§ 4 and 5 are in each instance to be construed as meaning “domicil” and “domiciliary.” Whenever the question has arisen, this court consistently has held, or at least assumed, that domicil is required. Shaw v. Shaw, 98 Mass. 158, 159 (1867). Winans v. Winans, supra. Labonte v. Labonte, 210 Mass. 319, 320 (1911). Field v. Field, supra. See Sampson v. Sampson, 223 Mass. 451, 461 (1916); Atwood v. Atwood, 297 Mass. 229, 232 (1937). Of course, if the use of “lived” in § 5 means “domiciled,” see Labonte v. Labonte, supra, then the justification for the two-year residence requirement evaporates altogether. If the requirement is for two years of domicil, then the two-year waiting period is irrelevant as evidence of domicil since domicil must be proved as of the beginning of the period.

16 The problem is exemplified by the Fernandez case. The Fernandezes were married and lived together in New York. According to the record, the libellee husband now resides in Puerto Rico. It would presumably be just as difficult for him to appear in a divorce proceeding in New York as in one in Massachusetts. In addition, there is no reason to believe that it would become any less difficult for him after two years have passed.

We should emphasize the necessity of strict compliance with the statute and court rules which stipulate notice requirements in divorce proceedings (G. L. c. 208, § 8, Rules 12 and 14 of the Superior Court [1954] and Rule 41 of the Probate Court [1959]). No divorce decree can have legal effect when it is based on notice to an absent libellee which is inadequate either because it fails to comply with statute or court rule or because it does not meet the requirements of due process. Corkum v. Clark, 263 Mass. 378 (1928). Williams v. North Carolina, 317 U. S. 287, 299 (1942). Actual notice is not required, Atherton v. Atherton, 181 U. S. 155, 172-173 (1901), but the notice which is given must be such that it is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.” Mullane v. Central Hanover Bank & Trust Co. 339 U. S. 306, 314 (1950). Judges presiding in ex parte divorce actions should freely exercise the power given them by statute and court rule to ensure that, whenever possible, actual notice is given to absent libellees.

17 Permanence is, of course, a matter of degree. The presumption at issue in the LaFleur decision, supra, was “permanent” in the sense that the teacher could never return to work while she was pregnant. The practical result of such a “permanent” exclusion, however, is to keep the teacher off the job only for a period of months. The presumption is only as permanent as the pregnancy.

18 In striking down the two-year residence requirement we, of course, intend no suggestion as to the validity of other requirements of our divorce statutes which involve time delays. See, e.g., G. L. c. 208, § 8B (husband wife must have lived apart for thirty days before a libel for divorce may be filed). In Dunn v. Blumstein, 405 U. S. 330 (1972), the Supreme Court struck down the durational residence requirements but let stand the State’s provision for closing the voter registration books thirty days prior to election day. Even though that provision barred some new residents (i.e., those who arrived within thirty days of the election) from voting, the court upheld it as administratively necessary to give the State an opportunity to investigate and determine the residence of voter registrants. 405 U. S. at 348. See Marston v. Lewis, 410 U. S. 679 (1973). In the present context such a period between filing the libel and proceeding on the merits might be constitutionally justifiable to permit investigation of the libellant’s claim of domicil. It would not be justifiable as a durational residence requirement for the purpose of proving domicil.