This libеl for divorce was entered in the Probate Court on November 4, 1971. It alleged that the parties were married in Pennsylvaniа on November 13, 1960, that they had last lived together as husband and wife in that State, that “at Chester, Pennsylvania on or about the third day of April 1971 and at divers other times and places the said libellee was guilty of cruel and abusive treatment towards your libellant,” that the “cause of action for divorce occurred outside the Commonwealth,” and that the “libellant has resided in this Commonwealth since April 14, 1971.” The libellee is described as a resident of Chester, Pennsylvania. No order of notice was ever issued for service on him, and he has filed no appearance submitting himself to the jurisdiction of the Probatе Court. On November 5, 1971, a judge of the Probate Court dismissed the *537 libel and the case is before us on the libellant’s appeаl from the decree of dismissal.
In a report of material facts filed on November 17, 1971,
1
the judge stated that because “[t]he listed cause for divorce occurred outside this Commonwealth, and the libellant has resided in this Commonwealth since April 14, 1971, . . . this Court does not appear to have jurisdictiоn to hear this libel.” He therefore dismissed the libel for lack of jurisdiction and cited G. L. c. 208, § § 4 and 5, as the basis for his action. Section 4 provides that: “A divorce shall not, except as provided in the following section, be decreed if the pаrties have never lived together as husband and wife in this commonwealth, nor for a cause which occurred in anothеr jurisdiction, unless before such cause occurred the parties had lived together as husband and wife in this commonweаlth, and one of them lived in this commonwealth at the time when the cause occurred.” The allegations of the libel do not bring the case within the provisions of this section. Section 5, as amended through St. 1969, c. 162, provides in part that “[i]f the libellant has lived in this commonwealth for two years last preceding the filing of the libel if the cause occurred without the commonwealth, ... a divorce may be decreed for any cause allowed by law, unless it appears that the libellant hаs removed into this commonwealth for the purpose of obtaining a divorce.” The allegations of the libel do nоt bring the case within the provisions of this section since the alleged cause for divorce had “occurred without the commonwealth,” and the libellant had not “lived in this commonwealth for two years last preceding the filing of the libel.”
2
This court has held in several cases that
*538
on fаcts similar to those of the present case the Probate Court is without jurisdiction to grant a divorce.
Hayes
v.
Hayes,
The report of material facts states that counsel for the libellant “claimed that these sections [G. L. c. 208, §§ 4 and 5] were invalid and in derogation of the Constitution, and decided to make this a test case.” The case was presented to this court solely on the basis of the original record of pleadings in the Probate Court and on the brief and the oral argument of counsel for the libellant. Counsel contends that the “two year durational residence requirement” of §§ 4 and 5 “violates the Equаl Protection Clause and the Due Process Clause of the Fourteenth Amendment of the United States Constitution.” In support оf this contention he relies heavily on the 1969 decision in
Shapiro
v.
Thompson,
It is the opinion of this court that such an ex parte presentation without the issuance of process for service on the libellee and an attempt to bring him within the jurisdiction of the Probate Court is not a satisfactory basis upon which to rеquire our decision of such an important constitutional question. “Only when the impact of a statute upon particulаr individuals, who have both the opportunity and the incentive to defend their rights by argument, and upon a set of definite facts established after genuine controversy, has been shown, can a court decide a constitutional question with confi
*539
dence that relevant considerations have not been overlooked.”
Bowe
v.
Secretary of the Commonwealth,
So ordered.
Notes
Since the judge held no hearing and received no evidencе, the report is a statement of facts alleged in the libel. The report states that the judge discussed the allegatiоns with the libellant’s counsel who “confirmed the allegations.”
The libellant took up residence in this Commonwealth on April 14, 1971, which was eleven days after the libellee’s alleged cruel and abusive treatment toward her in Chester, Pennsylvania, on Aрril 3, 1971. If “it appears that the libellant has removed into this commonwealth for the purpose of obtaining a divorcе,” the express language of § 5 *538 would deny her the benefit of the exceptions contained therein. This question of fact was not heard or decided by the judge and is not an issue in the present appeal.