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Cite as: [2001] IEHC 223

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THE HIGH COURT

FAMILY LAW

Record Number 2000/82M

IN THE MATTER OF

THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989

AND IN THE MATTER OF THE FAMILY LAW ACT, 1995

AND IN THE MATTER OF

THE FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT 1976 AS AMENDED AND

IN THE MATTER OF

THE FAMILY LAW (DIVORCE) ACT, 1996 BETWEEN

D.T.

APPLICANT

AND

F. L.

RESPONDENT

AND, BY ORDER THE ATTORNEY GENERAL

Judgment delivered by Mr. Justice Frederick Morris on the 23rd day of November 2001

These proceedings were initiated by way of Special Summons dated the 6th July 2000 whereby the Applicant claimed inter alia

(a) A decree of Judicial Separation pursuant to Section 2(1) (a) and/or 2(1) (b) and/or 2(1) (f) of the Judicial Separation and Family Law Reform Act 1989

In addition the Applicant sought a number of ancillary reliefs.

By Order of the 6th July 2001 pursuant to the Applicant's Notice of Motion dated the 30th May 2001 by consent it was ordered:

"(1) That a preliminary issue should be tried herein the issue being "whether the Respondent is or is not entitled to a declaration that the validity of a divorce obtained on the 13th day of July 1994 under the civil law of the Netherlands is or is not entitled to recognition in this State pursuant to the Family Law Act, 1995 Section 29(1) (d) and/or (e). "

It was also ordered that the Attorney General be joined as a Notice Party for the trial of the issue.

The Respondent claims that the divorce obtained on the 13th July 1994 under the civil law of the Netherlands is entitled to recognition in this State pursuant to the 1995 Act. The Applicant disputes and denies that this is so. There are two grounds upon which the Respondent bases his claim. The first is that on the date when the divorce was obtained under the civil law of the Netherlands he was domiciled in that jurisdiction.

The second ground is that the Respondent claimed that a divorce obtained in the Netherlands on the basis of residence, as the divorce obtained on the 13th July 1994 was, is entitled to recognition in this State.

With regard to the first of these issues.

The facts which are alleged by the Applicant upon which he relies to establish that he was domiciled in the Netherlands at the relevant time are as follows: He says that he and the Applicant were married on the 30th August 1980. Both parties had a domicile of origin in Ireland. After they married the parties set up the family home in Dublin. This house was held in the joint names of the parties subject to a mortgage. There were three children of the marriage, now aged respectively 19, 17 and 14/4. Prior to 1987 the Respondent who is a qualified engineer and also an accountant was in the employment of a major international accountancy firm in this country. In that year he changed his employment. He was employed by "X" Limited and appointed by them to the position of Project Manager responsible for the company's undertakings in Holland. It was necessary for the Respondent and the family to move to Holland as the position which the Respondent held required his supervision of the company's undertakings in that country. By agreement with his wife the family home in Ireland was sold and in April 1987 the Respondent moved to Holland and took up his appointment there with "X" Limited. As the parties third child was expected at this time by agreement the Applicant remained on in Ireland until August and then followed the Respondent to Holland. At the time when the family moved to Holland the tax regime in Ireland was what was described at the hearing as "penal". In contrast significant tax advantages were available to someone coming to work in that country, such as the Respondent. These advantages lasted for the first five years of such a person's employment. The term of the Respondent's employment with "X" in Holland was five years subject however to review at that time and the possibility that his appointment would be renewed. In Holland the parties acquired a family house in "Y". This area was specifically selected for the family home because it was a semi rural area and was away from the area frequented by persons who were described as "ex pats" at the hearing. A conscious decision was made by the parties that the time that they would spend in Holland was to be a worthwhile experience and it was their intention to become fully integrated into the life and culture of the country. They recognised that tourists and persons employed in multi national corporations resided in urban areas and they determined that they would avoid this type of company but instead would integrate themselves with the Dutch community. They both learnt Dutch and speak the language fluently. They enrolled their family into primary schools in the locality and they encouraged them to integrate with the children in the schools. The elder boy became fluent in Dutch. The Respondent because of his fluency in Dutch-got on well at his work which he conducted in the Dutch language. He liked the Dutch people with whom he associated. His work carried a heavy load of responsibility and he was extremely successful. I am in no doubt that each of the parties is extremely able and highly intelligent. The Applicant for her part is a University Graduate having obtained degrees in both French and Italian. She had no difficulty in learning the Dutch language and integrating in the community. During her time in Holland however she was not able to engage in any employment as she was a full time mother. There were no facilities for creches in her area nor was there any employment readily available.

Unfortunately differences arose in the marriage and as a result in the Summer of 1992 the Applicant and the children returned to Ireland with the intention that the children would attend school in Ireland in the future commencing in September of 1992. The family home in Holland was placed on the market and subsequently sold.

In the year 1992 the tax advantages available to the Respondent in Holland expired and he now gave consideration to his future. It is now necessary to consider what transpired at and around this time. The Applicant has said that as a result of conversations that she had with the Respondent she is aware that he was in negotiation with representatives of "X^ Limited-with a view to returning to Ireland and taking up a suitable job in that company. So far as the Applicant is concerned she believed that this was his intention at the time when she was leaving Holland. So far as the Respondent is concerned he says that the idea of returning to work in Ireland was one of many options he considered and did so only in the hope that it might save the marriage. It was always his intention to remain on in Holland. He has said that the life in Holland suited him. He had severed his connections with Ireland. The job that he had in Holland required his continued attendance and in summary he said that by this stage he was so firmly entrenched in the way of life in Holland that he now had acquired a domicile of choice in Holland. It was suggested to the Respondent that at the time when he took up his position in Holland he was assured that at the end of a five year period there would be a position available to him in Ireland with "X" Limited. He denied this and said that the furthest such discussions went was that if at the end of his assignment in Holland he wished to return to Ireland then an effort would be made to accommodate him without giving him an assurance that a position would be found. He said that it would be quite wrong to regard his stay in Holland as a temporary move. At all stages he considered it to be a permanent move and he says that in fact the country, the people and the way of life were such that he then regarded it as his home. In support of this contention he points to the fact that when leaving Ireland he cancelledmembership of his clubs in Ireland.—This was a significant factor as the Respondent is a gifted helmsman sailing to Olympic standards. He says he would never have cancelled his club memberships if he had an intention to return to Ireland.

The Applicant disputes the Respondent's assertion that he had acquired a domicile of choice in Holland. She says that his move to Holland was no more than a career change and that he was motivated to move by the tax regime in Ireland and the benefits he obtained in Holland. She says that towards the end of the five year period he returned to Ireland on a number of occasions to discuss the job which "X" would give him in Ireland and was disappointed at the level of the job which was being offered to him in Ireland. In particular she remembers that he travelled to Ireland to discuss job opportunities and the occasion coincided with an international rugby match. She says that he never intended to lose contact with Ireland as is witnessed by the fact that he always spent his Summer holidays in West Cork with his family. She says that he returned to Ireland on a number of occasions both on holidays and to buy school uniforms for the children and moreover she points to the fact that ultimately when he did return from Holland he took up employment in Ireland holding a major position in a multimillion pound Irish company, a position which he holds up to the present time.

On these facts therefore the issue is whether the Respondent has discharged the onus of proof that he had relinquished his domicile of origin and acquired a domicile of choice in Holland.

The approach which the court should take to the resolution of this issue is clearly stated in Joyce v Fagan & Others 19461.R. 277. In the High Court Over and J. quoted with approval the views expressed in Ramsey v Liverpool Roval Infirmary 1939 AC 588 and in particular the following passage:

"The question in such a case is not whether there is evidence of an intention to retain the domicile of origin but whether it is proved that there was an intention to acquire another domicile. But residence alone is not enough. The real question in the case is whether this prolonged residence in England was accompanied by an intention on the part of the deceased to choose England as his permanent home in preference to the country of his birth. The law requires evidence of volition to change. Prolonged actual residence is an important item of evidence of such volition but it must be supplemented by other facts and circumstances indicative of intention. The residence must answer a qualitative as well as a quantitative test. "

And in the Supreme Court Black J. had this to say:

"It is entirely in accordance with the authorities to say that the purpose or intention in question is a positive and not a merely negative concept. One cannot formulate a settled purpose or deliberate intention in a state of sheer mental passivity nor can the existence of any given intention be inferred from the mere absence of a contrary intention. This distinction was a governing factor in more than one important decision on the law of domicile.

The question then arises as to what conduct will justify the inference of "fixed and settled purpose " or "final and deliberate intention " to change one's domicile.

In this case I would be prepared to accept that the Respondent became fond of living in Holland and that he was content to remain there for the purposes of his work. I would have no difficulty in accepting that if "X" Limited had renewed and continued to renew his contract in Holland all other things being equal he would have been prepared to remain there. However I am equally sure that if for any reason his employment was discontinued with "X" and if he was unable to obtain a suitable position in Holland he would have been ready and willing to travel to another country to pursue a job opportunity. I could never foresee the possibility that the Respondent would remain in Holland come what may and even if he were without employment. In my view he has not satisfied the positive element of the test. No more do I consider that he formulated any intention of abandoning Ireland as his domicile of origin. The only evidence which is consistent with this intention was the sale of the family home and the cancelling of his membership of clubs. If one weighs these factors against the evidence that he returned to Ireland for his Summer holidays, that he visited his family in Ireland on a number of occasions, that he arranged for his wife to return to Ireland when difficulties arose in the marriage, in my view it is clear beyond doubt that he never abandoned his domicile of origin.

Accordingly I hold that on the 13th July 1994 being the date upon which the divorce was obtained in the Netherlands the Respondent was domiciled in Ireland.

I now set out the circumstances in which the Dutch divorce came to be granted.

The Applicant has given comprehensive evidence of the way in which she says the Respondent deprived her and the children of-sufficient-funds to keep them in any degree of comfort. She said that as a last resort she took advice and was in summary advised that it was open to her to apply to the court in Holland for what would be described in this jurisdiction as interim maintenance. This jurisdiction was available to her because the Respondent was resident in Holland. Based on this advice she contacted a Dutch lawyer and instituted proceedings in Holland for the recovery of interim maintenance. She succeeded in obtaining such an Order. It is, however, a condition of the granting of such an Order that the Applicant in such proceedings will proceed to prosecute the case to seek a divorce. If this is not done then the Order for interim maintenance lapses. The Applicant having obtained her Order for interim maintenance took no further active steps in the proceedings. I am satisfied that the Respondent being aware of the proceedings availed of their existence to settle up outstanding matters and with the co-operation of the wife the necessary steps were taken so that Judgment was entered granting the divorce in Holland on the 13th July 1994. It is common case that the court in Holland will accept the jurisdiction based on the residence of one of the parties. Outstanding issues between the parties such as maintenance and access to children are dealt with by way of "a convention" which is agreed between the parties. Such convention was in fact entered into between the parties on the 13th July 1994.

The Applicant has told the court that at the time when she embarked on these proceedings she was confused and the only realistic consideration which she gave to the matter was the urgent need which she saw to have provision made for her and for the children. She says that they were without support to the extent they were driven to seek social welfare payments in Ireland. The Respondent denies that there was ever any shortage of money and points to the fact that leading up to the time when the divorce covenant was entered into he had provided the Applicant with sufficient funds to pay a deposit on a house which was not used for this purpose but was devoted towards maintenance of the Applicant and the children.

Having set out those facts I now turn to consider the second issue which is before the court that is to say the entitlement of the divorce granted by the

Dutch courts which is based on the Respondent's residence in that jurisdiction to recognition in this jurisdiction.

Prior to McG v W and Another 2000 ILRM 107 a divorce based on residence as conferring a jurisdiction had not been held to be entitled to recognition in this jurisdiction. In that case McGuinness J. had to consider a set of facts which included the fact that a divorce was granted in England in 1985 based upon the residence of the relevant party. Of-signifieance is thefact that the divorce was granted prior to the coming into operation on the 2nd October, 1986 of the Domicile and Recognition of Foreign Divorces Act, 1986. McGuinness J. held that the laws governing recognition of foreign divorce in our jurisdiction prior to 1986 were Common Law or Judge made and accordingly on the authority of W v W (1993) 2 I.R. 476 she recognised the court's entitlement and indeed obligation, given certain circumstances, to change such laws. On this basis and for the reasons stated in her Judgment she changed the common law rules as to entitlement to recognition holding that, in the instant case, the divorce based on the residence of the party in question in England entitled the divorce to recognition in this jurisdiction. With that decision I am in respectful agreement. However, as I say the divorce with which the learned Trial Judge had to deal was one granted prior to the 2^nd October 1986. The divorce with which I am concerned was granted after the coming into operation of the Act.

The question now is this: what effect, if any, did the passing of this Act have upon the court's entitlement to alter or vary the rules as to recognition and indeed whether these rules are still regulated by common law. It would follow that if they are regulated by common law then in an appropriate case the court is entitled to alter them—If the rules are regulated by statute-then the court is not as since to do so would be a trespass upon the function of the legislature.

I am of the view that with the enactment of Section 5. of the 1986 Act the rules relating to recognition of foreign divorces passed from the common law and thereafter were regulated by statute. Thereupon the court's right to alter the rules ceased. There are, in my view, three basic reasons which satisfy me that this is the case.

In his Judgment W v W Egan J. had this to say:

The recognition of foreign divorce is identified as part of our legal system by Article 41.3 of the Constitution and regulated by it. In the absence of statutory regulation of it before the 2nd October 1986 there must be for the period before that time a regulation by common law.

In my view Egan J. clearly contemplates that upon the passing of the 1986 Act and thereafter the matter became regulated by Statute. Similar dicta are to be found in the Judgment of Blayney J.

Secondly, Section (5)( 1) of the Act of 1986 by its very wording clearly intends to substitute a "rule", that is to say a statutory rule, for what the Act describes as a "rule of law" this being a statutory term for a Judge made rule.

Thirdly, it is, in my view, apparent that the legislature intended that all aspects of recognition of foreign divorces would be governed by this enactment since by sub-section (4) of section 5. the legislature provided for circumstances in which courts should recognise a divorce which was recognised (though not granted) by courts of the spouses' common domicile. This circumstance was the subject matter of Judicial consideration in Armitage v A.G. (1906) p. 135 in England. It had not been litigated in the courts in this Jurisdiction. However, in my view, it is of significance that the legislature by providing for this circumstance in advance of the courts being called upon to consider the issue clearly intended to remove from the common law all matters in relation to recognition.

I have no doubt however that since it was open to the court in McG v W to bring the common law in line with current policy it was correct to do so. I believe that if there was a jurisdiction still vested in me I should do so in this case. However, in my view the passing of the 1986 Act removes this jurdiction from me.

Residence is not a basis for recognition under the Act.

Accordingly, the issue to be tried by the court should be answered that the Respondent is not entitled to a declaration that the validity of the divorce obtained on the 13th July 1994 under the civil law of the Netherlands is entitled to recognition in this State.