Mrs A., who resides at Kurri Kurri, New South Wales, and is by birth a British subject, was married in 1895 at Newcastle, New South Wales, to a subject of the Ger-man Empire.

Her husband, who has not been naturalized as a British subject, met with an acci-dent some years ago, which occasioned him permanent mental injury, and rendered necessary his confinement in an asylum.

Mrs A. is desirous of being naturalized under the Commonwealth Naturalization Act 1903, and I am asked to advise on the following questions:

1. Is there any authority for a woman, born a British subject, who has lost her Bri-tish nationality by marriage with an alien, being readmitted to British nationality dur-ing the lifetime of her husband?
2. Does the fact that her husband is a lunatic affect the question?
3. Is there any objection under the Naturalization Act 1903 to a married woman of alien nationality applying for and being granted a certificate of naturalization?

The first question involves the meaning and the application of section 10 of the Im-perial Naturalization Act 1870.

At common law, the marriage of a British woman to an alien did not affect her nationality. The English law on this subject was altered by section 10 of The Naturalization Act 1870, which provides that a married woman shall be deemed to be a subject of the State of which her husband is for the time being a subject.

The Naturalization and Denization Act of New South Wales 1898 contains a simi-lar provision (section 8). The Naturalization Acts of all the other States-being passed before 1870-contain no such provision.

There is no such provision in the Commonwealth Act. In the Bill as introduced there was a clause providing that a British woman should lose her British nationality on marriage with an alien husband; but it was struck out in the Senate-the expressed in-tention being to allow the wife to retain her British nationality: Parliamentary Debates 1903, Vol. 14, p. 3200.

In 1906 the question arose whether a natural-born British woman married to an alien was, in Australia, an alien. Mr Attorney-General Isaacs advised⁽¹⁾ (29 March 1906) that the extent of the application of the British Act was not clear; but that, on the whole, the wife should be given the benefit of the doubt, and treated as a British subject.

On 2 June 1909, the Secretary to this Department advised⁽²⁾ (without citing Mr Isaacs' opinion) that section 10 of the British Act governed the case of the widow of an alien, and that she was a statutory alien.

In the view that I take, it is not necessary to decide whether section 10 of the Act of 1870 extends to the Commonwealth, though I see no reason to doubt that it does. But even assuming that it does, I do not think it necessarily prevents the issue of a cer-tificate of naturalization to a woman who is the wife of an alien. It is capable of being

construed as merely laying down the rule for ascertaining the status of a married woman-not as limiting the right of altering that status by the issue of a certificate of naturalization to her.

My opinion upon the specific questions asked is as follows:

1. 1 know of no authority precisely in point.
2. No.
3. No.

[Vol. 8, p. 104]

(1) Opinion not published [Vol. 5, p. 214].

(2) Opinion not published [Vol. 7, p. 136].

*See also Opinion No. 391.