George Rose Smith, J.
The only question here is the validity of Act 36 of 1957, which added the following provision to the statute governing the matter of residence in divorce cases: "The word 'residence’ as used in Section 34-1208 is defined to mean actual presence and upon proof of such the party alleging and offering such proof shall he considered domiciled in the State and this is declared to be the legislative intent and public policy of the State of Arkansas.” Ark. Stats. 1947, § 34-1208.1. The effect of the 1957 statute is to substitute residence, in the sense of physical presence, for domicile as a jurisdictional requirement in divorce cases. The chancellor held the act unconstitutional and, finding that the plaintiff-appellant is not domiciled in Arkansas, dismissed his suit for divorce.
The parties were married in 1948 and were living-in Maryland when they separated in 1952. The record does not show where the marriage ceremony was performed, but it was evidently in some state other than Arkansas. It is not contended that either of the parties had ever lived in Arkansas before the appellant came here in May of 1957. At that time he was transferred by his employer, a private corporation, to a station in Millington, Tenxiessee, which is some twenty miles northeast of West Memphis, Arkansas. Wheat rented an apartment in West Memphis and traveled back and forth each day to his work at Millington. After havixxg thus resided in Arkansas for about three months Wheat filed this suit for a divorce, on the ground of three years separatioxi. Mrs. Wheat, who is a resident of California, was served by warning order. She filed a crosscomplaixit asking for separate maintenance, but she denied the court’s jurisdiction to grant a divorce. Although Wheat testified that he intends to make Arkansas his home, the weight of the evidence supports the chancellor’s findixxg that Wheat has xiot established his domicile in this state. Hence the case turns upon the validity of Act 36, by which the jurisdictional requirement of domicile was abolished.
The legal history that lay behind Act 36 is well known. The Civil Code of 1869 required the plaintiff in a divorce case to prove residence in the state for one year next before the commencement of the action. C. & M. Dig., § 3505. In 1931 the legislature amended the statute to require only that the plaintiff prove residence for three months next before the judgment and for two months next before the commencement'of the action. Ark. Stats., § 34-1208. In 1932 we held that the amended statute meant residence only, not domicile. Squire v. Squire, 186 Ark. 511, 54 S. W. 2d 281. This interpretation was followed until 1947, when we overruled the Squire case and held that the statutory reference to residence meant domicile. Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, noted in 2 Ark. L. Rev. 111. The Gassen case did not reach the constitutional question now presented, as the decision involved only an issue of statutory construction. It cannot be doubted that by Act 36 the legislature intended to restore the rule of the Squire case, for the emergency clause in the act refers specifically to that decision and to the Gassen case.
Although the wisdom of Act 36 is of no concern to the courts, since the law of divorce is purely statutory, Squire v. Squire, supra, Young v. Young, 207 Ark. 36, 178 S. W. 2d 994, 152 A. L. R. 327, we may nevertheless observe that the act may well have been designed to prevent perjury. We know, of course, that the residential requirements for divorce vary greatly among the forty-nine states. In a decided majority of the states the plaintiff must have lived in the state for at least a year before filing suit. Louisiana and New York have no minimum period of residence, but their laws do not permit the courts to entertain cases where the state had no substantial connection with the marriage.
Arkansas is one of the five states in which the necessary period of residence is relatively short. In Idaho and Nevada the period is six weeks, in Wyoming sixty days, in Arkansas three months before judgment, and in Utah three months before the commencement of suit. At the time Act 36 was adopted all five of these states demanded proof of domicile as a condition to the granting of a divorce.^
It is a matter of common knowledge that every year thousands of unhappily married persons, unable to obtain divorces at home, visit one or another of these five states in search of marital freedom. It is equally well known that the need for proof of domicile leads to perjury in a vast number of instances. The situation in Nevada, for example, has been described in these words: “It has been estimated that 8,616 divorces were granted in Nevada in 1942 and 11,399 in 1943, the great majority of which must have been obtained by non-residents who went to Nevada solely for divorce purposes, remaining there only the required six weeks. All the while they contemplated returning to their home states immediately after their divorces were secured, yet they all swore falsely that they intended to make Nevada their permanent home, having been warned by local counsel that, unless they did so, they would be out of court. On advice of counsel they also took steps which would be accepted by the Nevada courts as corroborating their sworn statement but were actually nothing more than sham and camouflage. Upon such evidence the courts find that they acquired a Nevada domicil.” Lorenzen, Extraterritorial Divorce — Williams v. North Carolina 11, 54 Yale Law Journal 799, 801. We should be less than candid if we did not concede that similar instances of perjury have taken place in Arkansas. Act 36 goes far toward freeing litigants from the temptation to swear falsely on the issue of domicile.
To hold the act invalid we must be able to assert that it conflicts with some particular clause in the state or federal constitution. Only two clauses seem sufficiently pertinent to warrant discussion.
First is the full faith and credit clause of the federal constitution. This clause is now construed to mean that a divorce decree is not entitled to recognition in other states unless one of the parties was domiciled in the state where the decree was rendered, Williams v. North Carolina, 317 U. S. 287, 87 L. Ed. 279, 63 S. Ct. 207, 143 A. L. R. 1273, with an exception which precludes either party from attacking the decree if the question of domicile was actually put in issue. Sherrer v. Sherrer, 334 U. S. 343, 92 L. Ed. 1429, 68 S. Ct. 1087, 1 A. L. R. 2d 1355.
The full faith and credit clause deals only with the extent to which the decree is entitled to recognition elsewhere. It does not purport to say that the decree is not valid in the state where rendered; still less does it intimate that the courts cannot be authorized to act at all in the absence of proof of domicile.
We do not question the desirability of having Arkansas divorce decrees receive recognition in other states. That wish was the basic reason for the Cassen decision. But it must be remembered that a decree is not entitled to respect elsewhere merely because the statute exacts a showing of domicile as a condition to the maintenance of the suit, and this is true even though the court makes a finding that domicile does exist. The decree is still not conclusive of the issue, which may be re-examined in other jurisdictions. Williams v.
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George Rose Smith, J.
The only question here is the validity of Act 36 of 1957, which added the following provision to the statute governing the matter of residence in divorce cases: "The word 'residence’ as used in Section 34-1208 is defined to mean actual presence and upon proof of such the party alleging and offering such proof shall he considered domiciled in the State and this is declared to be the legislative intent and public policy of the State of Arkansas.” Ark. Stats. 1947, § 34-1208.1. The effect of the 1957 statute is to substitute residence, in the sense of physical presence, for domicile as a jurisdictional requirement in divorce cases. The chancellor held the act unconstitutional and, finding that the plaintiff-appellant is not domiciled in Arkansas, dismissed his suit for divorce.
The parties were married in 1948 and were living-in Maryland when they separated in 1952. The record does not show where the marriage ceremony was performed, but it was evidently in some state other than Arkansas. It is not contended that either of the parties had ever lived in Arkansas before the appellant came here in May of 1957. At that time he was transferred by his employer, a private corporation, to a station in Millington, Tenxiessee, which is some twenty miles northeast of West Memphis, Arkansas. Wheat rented an apartment in West Memphis and traveled back and forth each day to his work at Millington. After havixxg thus resided in Arkansas for about three months Wheat filed this suit for a divorce, on the ground of three years separatioxi. Mrs. Wheat, who is a resident of California, was served by warning order. She filed a crosscomplaixit asking for separate maintenance, but she denied the court’s jurisdiction to grant a divorce. Although Wheat testified that he intends to make Arkansas his home, the weight of the evidence supports the chancellor’s findixxg that Wheat has xiot established his domicile in this state. Hence the case turns upon the validity of Act 36, by which the jurisdictional requirement of domicile was abolished.
The legal history that lay behind Act 36 is well known. The Civil Code of 1869 required the plaintiff in a divorce case to prove residence in the state for one year next before the commencement of the action. C. & M. Dig., § 3505. In 1931 the legislature amended the statute to require only that the plaintiff prove residence for three months next before the judgment and for two months next before the commencement'of the action. Ark. Stats., § 34-1208. In 1932 we held that the amended statute meant residence only, not domicile. Squire v. Squire, 186 Ark. 511, 54 S. W. 2d 281. This interpretation was followed until 1947, when we overruled the Squire case and held that the statutory reference to residence meant domicile. Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, noted in 2 Ark. L. Rev. 111. The Gassen case did not reach the constitutional question now presented, as the decision involved only an issue of statutory construction. It cannot be doubted that by Act 36 the legislature intended to restore the rule of the Squire case, for the emergency clause in the act refers specifically to that decision and to the Gassen case.
Although the wisdom of Act 36 is of no concern to the courts, since the law of divorce is purely statutory, Squire v. Squire, supra, Young v. Young, 207 Ark. 36, 178 S. W. 2d 994, 152 A. L. R. 327, we may nevertheless observe that the act may well have been designed to prevent perjury. We know, of course, that the residential requirements for divorce vary greatly among the forty-nine states. In a decided majority of the states the plaintiff must have lived in the state for at least a year before filing suit. Louisiana and New York have no minimum period of residence, but their laws do not permit the courts to entertain cases where the state had no substantial connection with the marriage.
Arkansas is one of the five states in which the necessary period of residence is relatively short. In Idaho and Nevada the period is six weeks, in Wyoming sixty days, in Arkansas three months before judgment, and in Utah three months before the commencement of suit. At the time Act 36 was adopted all five of these states demanded proof of domicile as a condition to the granting of a divorce.^
It is a matter of common knowledge that every year thousands of unhappily married persons, unable to obtain divorces at home, visit one or another of these five states in search of marital freedom. It is equally well known that the need for proof of domicile leads to perjury in a vast number of instances. The situation in Nevada, for example, has been described in these words: “It has been estimated that 8,616 divorces were granted in Nevada in 1942 and 11,399 in 1943, the great majority of which must have been obtained by non-residents who went to Nevada solely for divorce purposes, remaining there only the required six weeks. All the while they contemplated returning to their home states immediately after their divorces were secured, yet they all swore falsely that they intended to make Nevada their permanent home, having been warned by local counsel that, unless they did so, they would be out of court. On advice of counsel they also took steps which would be accepted by the Nevada courts as corroborating their sworn statement but were actually nothing more than sham and camouflage. Upon such evidence the courts find that they acquired a Nevada domicil.” Lorenzen, Extraterritorial Divorce — Williams v. North Carolina 11, 54 Yale Law Journal 799, 801. We should be less than candid if we did not concede that similar instances of perjury have taken place in Arkansas. Act 36 goes far toward freeing litigants from the temptation to swear falsely on the issue of domicile.
To hold the act invalid we must be able to assert that it conflicts with some particular clause in the state or federal constitution. Only two clauses seem sufficiently pertinent to warrant discussion.
First is the full faith and credit clause of the federal constitution. This clause is now construed to mean that a divorce decree is not entitled to recognition in other states unless one of the parties was domiciled in the state where the decree was rendered, Williams v. North Carolina, 317 U. S. 287, 87 L. Ed. 279, 63 S. Ct. 207, 143 A. L. R. 1273, with an exception which precludes either party from attacking the decree if the question of domicile was actually put in issue. Sherrer v. Sherrer, 334 U. S. 343, 92 L. Ed. 1429, 68 S. Ct. 1087, 1 A. L. R. 2d 1355.
The full faith and credit clause deals only with the extent to which the decree is entitled to recognition elsewhere. It does not purport to say that the decree is not valid in the state where rendered; still less does it intimate that the courts cannot be authorized to act at all in the absence of proof of domicile.
We do not question the desirability of having Arkansas divorce decrees receive recognition in other states. That wish was the basic reason for the Cassen decision. But it must be remembered that a decree is not entitled to respect elsewhere merely because the statute exacts a showing of domicile as a condition to the maintenance of the suit, and this is true even though the court makes a finding that domicile does exist. The decree is still not conclusive of the issue, which may be re-examined in other jurisdictions. Williams v. North Carolina, 325 U. S. 226, 89 L. Ed. 1577, 65 S. Ct. 1092. Although Nevada ostensibly requires proof of domicile, we have refused to recognize a Nevada decree when the court’s finding of domicile was clearly unsupported. Cooper v. Cooper, 225 Ark. 626, 284 S. W. 2d 617. With or without Act 36 the acceptance of any particular Arkansas decree by a court in another state will ultimately depend upon whether that court believes that an Arkansas domicile really existed. Even if the act deprives the decree of prima facie extraterritorial validity when the Arkansas court fails to make a finding of domicile, it was for the legislature to say whether this disadvantage is outweighed by the beneficial consequences of the statute.
The other constitutional provision to be considered is the due process clause. On this point the arguments on each side are examined in detail in the majority and minority opinions in Alton v. Alton, 3d Cir., 207 Fed. 2d 667, appeal dismissed as moot, 347 U. S. 610, 98 L. Ed. 987, 74 S. Ct. 736. See also Granville-Smith v. Granville-Smith, 349 U. S. 1, 99 L. Ed. 773, 75 S. Ct. 553. In the Alton case the Court of Appeals declared invalid a Virgin Islands statute which provided that six weeks residence should be prima facie evidence of domicile and, further, that if the defendant entered his appearance the court would have jurisdiction without reference to domicile. The facts were that Mrs. Alton brought suit for divorce after having resided in the Islands for the necessary six weeks. Her husband entered his appearance but made no defense. The trial court refused to grant a divorce without proof of domicile. The Court of Appeals, by a vote of four to three, sustained the trial court, holding that the statute denied due process of law.
We have studied the majority opinion in the Alton case with much care but do not find it convincing. The Fourteenth Amendment declares that no state shall deprive any person of life, liberty, or property without due process of law. The question at once arises: What person was denied due process in the Alton case? The majority’s answer is hardly satisfying: “The question may well be asked as to what the lack of due process is. The defendant is not complaining. Nevertheless, if the jurisdiction for divorce continues to be based on domicile, as we think it does, we believe it to be lack of due process for one state to take to itself the readjustment of domestic relations between those domiciled elsewhere.” It will be seen that although Alton alone could have complained of a denial of due process and did not choose to do so, the court nevertheless found that his constitutional rights were somehow being violated.
In the case at bar Mrs. Wheat, unlike Alton, elects to contest the action for divorce and to attack the validity of Act 36. We may lay aside at the outset any question about procedural due process. It is not suggested that Mrs. Wheat is being denied notice or an opportunity to be heard. To the contrary, she invokes the court’s jurisdiction by her request for separate maintenance. We also assume that there is no doubt about the power of the Arkansas courts to determine Mrs. Wheat’s marital rights in any Arkansas property her husband may own.
The difficult question is raised by the theory,/Which was the basis for the Alton decision,(that the marriage relationship is a res that remains always at the parties’ common domicile, or at their separate domiciles, and is therefore beyond the reach of courts in other jurisdictions. "See Rest., Conflict of Laws, § 110; Leflar, Arkansas Law of Conflict of Laws, § 133; and compare Corwin, Out-Haddocking Haddock, 93 Pa. L. Rev. 341. It will hardly do to side-step this issue by merely observing that the marital status in the domiciliary jurisdiction will not be affected if our decree is not entitled to full faith and credit there.
With respect to the due process clause, as distinguished from the full faith and credit clause, we are not convinced that domicile must be the sole basis for the exercise of jurisdiction over the marriage relationship .//As the court observed in Wallace v. Wallace, 63 N. M. 414, 320 P. 2d 1020; “Where domicile is a statutory jurisdictional prerequisite it is quite correct to say that jurisdiction for divorce is founded on this concept. It is quite another matter to flatly declare that there may be no other relation between a state and an individual which will create a sufficient interest in the state under the due process clause to give it power to decree divorces . . . Precedent is not lacking for the conclusion that divorce jurisdiction can be founded on circumstances other than domicile.” The court concluded that a soldier’s residence in the state for a year, although insufficient to establish domicile, was a reasonable basis for the exercise of jurisdiction over the marital status.
The appellee relies strongly upon the decision in Jennings v. Jennings, 251 Ala. 73, 36 So. 2d 236, 3 A. L. R. 2d 662, where the court held invalid a statute permitting nonresident couples to confer jurisdiction by consent and thus obtain a divorce in Alabama with no residence there at all. We agree with that decision, for there was no reasonable basis for the exercise of jurisdiction over the marital status.
It has been pointed out repeatedly that the theory of basing divorce jurisdiction solely on domicile has led to conflicting decisions and to legal confusion ever since the theory was first formulated in connection with the full faith and credit clause. Domicile differs from residence only in the existence of a subjective intent to remain more or less permanently in the particular state. Whether that intent exists on the part of a person who comes to Arkansas can seldom be proved with any meas- • ure of certainty. Often it is only after the court has decided this perplexing question that the lack of intent ¡becomes apparent, as when the successful plaintiff immediately leaves the state. Although the/court reached its ’decision in the utmost good faith, the want of domicile becomes retroactively so demonstrable that the issue must be decided the other way when the decree is relied upon _ in another state.
By Act 36 the legislature has substituted the simple requirement of three months residence, which can be proved with certainty, for the nebulous concept of domicile, which usually cannot be proved. We concede that the period of residence might be shortened so unreasonably, as in the Jennings case, as to indicate that the state has no reasonable basis for exercising jurisdiction over the marriage. We are not convinced, however, that the act before us is open to that criticism. Under the holding in Squire v. Squire, supra, the rule of Act 36 actually prevailed in this state for fifteen years. Now that the legislature has unmistakably expressed its intention in the matter, we do not feel that the due process clause compels us to say that its action is arbitrary.
Reversed.
Harris, C. J., concurs. Holt and McFaddin, JJ., dissent.