High Court of Ireland Decisions

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Cite as: [1997] 1 IR 334, [1997] IEHC 4, [1997] 1 ILRM 401

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C. (R.) v. C. (C.) [1997] IEHC 4; [1997] 1 IR 334; [1997] 1 ILRM 401 (17th January, 1997)

THE HIGH COURT

1996 No. 10883p

R.C.

PLAINTIFF

AND

C.C.

DEFENDANT

Judgment of Mr. Justice Barron delivered on the 17th day of January, 1997.

1. The Plaintiff seeks a decree of dissolution of marriage. The parties were married abroad. There are three children of the marriage, all adult. The eldest child is a son who is married and has twin daughters. The two younger children are daughters and are unmarried.

2. These proceedings are brought pursuant to the provisions of Article 41.3.2 of the Constitution notwithstanding that the Family Law (Divorce) Act, 1996 is not yet in force. The first question which must be determined is whether that provision creates a jurisdiction and, if so, whether it is exercisable by this Court.

3. I have had the benefit of a written submission on behalf of the Plaintiff and also very careful oral submissions in relation to both these matters. It is submitted that there are two instances in the Act itself which indicates that the Act is intended to regulate a jurisdiction conferred by the Constitution. First, the long title to the Act commences;

"An Act to make provision for the exercise by the Courts of the jurisdiction conferred by the Constitution to grant decrees of divorce...";

and secondly, the power to grant a decree of dissolution contained in Section 5 of the Act is stated to be in exercise of the jurisdiction conferred by Article 41.3.2 of the Constitution.

4. From these two references and from the terms of the relevant provision of the Constitution itself, it seems clear that a jurisdiction to grant a decree of dissolution of marriage derives from the Constitution and not from the Statute.

5. This Court has under the Constitution - Article 34.3.1 - a full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal. Whether this jurisdiction can be limited has been considered in cases where legislation has conferred jurisdiction exclusively on Courts of limited jurisdiction. In Tormey -v- Ireland, 1985 I.R. 289, the Plaintiff sought to be tried on a criminal offence in the High Court notwithstanding that under Statute law the jurisdiction to hear the matter was conferred upon the Circuit Court. In the Supreme Court, it was held that the jurisdiction of the High Court could only be cut down by the Constitution itself. At page 297, Henchy J. said:-

"Save to the extent required by the terms of the Constitution itself, no justiciable matter or question may be excluded from the range of the original jurisdiction of the High Court."

6. It was held in that case that the full original jurisdiction of the High Court was not ousted in the circumstances since its supervisory jurisdiction remained intact.

7. In an earlier case in the High Court R -v- R , 1984 I.R. 296 where certain family law matters were apparently excluded from the jurisdiction of the High Court,

8. Gannon J. expressed a similar view in the following terms at page 308 as follows:-

"In my view, it would be inconsistent with the provisions of Article 34, s.3, sub-s.1 (as interpreted by the Supreme Court in R. D. Cox Limited -v- Owners of M. B. Fritz Raabe ) if there could be no jurisdiction in any Court in such matters unless and until a jurisdiction was conferred by enactment of the Oireachtas. From the amplitude of jurisdiction with which the High Court is invested by Article 34 of the Constitution, it follows that the Oireachtas does not add to or increase the jurisdiction of the High Court by legislation."

9. Article 41.3.2 provides as follows:-

"A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that -

1. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,

2. there is no reasonable prospect of a reconciliation between the spouses,

3. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law,

4. any further conditions prescribed by law are complied with."

10. I am satisfied having regard to the precedents to which I have referred that the High Court is for the purposes of this provision of the Constitution a Court designated by law and that the jurisdiction granted by those provisions may be exercised by this Court. There is nothing in that provision which limits the powers of this Court to exercise the jurisdiction created nor is there any statutory provision in force based upon any other provisions of the Constitution which take away such jurisdiction.

11. The constitutional provision sets out the matters upon which this Court must be satisfied.

12. Evidence has been given by both husband and wife, the former being taken in the main on commission. From this evidence, I am satisfied that the parties were married. Following their marriage, they lived in several countries until they settled in the State. They lived together until they separated, the husband going to live with another woman by whom he has had a daughter. The parties to these proceedings have lived apart continuously since then up to the date of the issue of the proceedings and since that date.

13. The parties live close to each other without bitterness on either side. The wife has come to terms with the situation that her feelings towards her husband are not reciprocated. Nevertheless, there is no reasonable prospect of a reconciliation between them.

14. The elder daughter of the parties lives with her mother; the younger daughter lives on her own in accommodation provided by her mother. The son of the marriage rents accommodation from his mother in that one of the properties to be transferred into her name purchased in equal shares by the parties hereto. The Plaintiff carries on a professional practice from part of the same premises.

15. Each of the children is in employment. There is no evidence that any are in need or have any special requirements for their welfare. The relationship between the Plaintiff and his son is good. Unfortunately, his daughters resented his treatment of their mother and have not spoken to him since he ceased to live with her.

16. The family assets comprise three properties, two in the State and one abroad. The latter was bought entirely by funds the property of the wife, but put into joint names. The former were both put into the sole name of the husband, one having been bought entirely with the wife's own monies and the other by equal contributions from each spouse. The husband and wife each has substantial assets in Trust Funds; those of the wife being more that double those of the husband.

17. It is proposed to transfer all three properties into the name of and beneficial ownership of the wife. The value of these properties will add approximately 75% to the current value of the wife's Trust Funds. The value of that portion of such property as was purchased with the husband's monies would if aggregated with the value of his other assets amount to approximately 25% of his total assets. He also proposes to transfer approximately one third of his remaining assets equally between his three children.

18. I am satisfied that these provisions are proper in the overall circumstances of the family.

19. It is to be noted that the provisions of clause 3 of Article 41.3.2 of the Constitution differ from the corresponding statutory provision. The former requires

"such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law,"

whereas the latter provides for

"such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses and any dependant members of the family".

20. Since the jurisdiction invoked is that contained in the Constitution and not that amplified by the Act, it is necessary for the Court to consider the position of the children. While I do not purport to determine that non dependant children should necessarily have provision made for them, I am satisfied that in the particular circumstances of the present case it is proper that certainly the two daughters of the marriage should have provision made for them in the interests of the family as a whole.

21. There are no further conditions prescribed by law currently in force which must be complied with as a pre-condition to the exercise of this constitutional jurisdiction.

22. While the wife does not wish to be divorced from her husband, she has made no effort to oppose these proceedings other than to ensure that proper provision should be made in accordance with Article 41.3.2. This gives rise to consideration as to whether this might amount to collusion. I am satisfied that there has been none and that the evidence before the Court has been truthfully given.

23. I am satisfied that the provisions of the Constitution have been complied with and that this is a proper case in which an Order for the dissolution of the marriage should be made.