High Court of Ireland Decisions

1. These are extraordinary cases. There are two sets of proceedings before this Court. The background to these proceedings is as follows:

2. M.E.C. and J.A.C. were lawfully married to each other on the 18th day of May, 1968 in Sligo. In or about 1968 they moved to England where three children of the marriage were born all of whom have achieved their majority. However, one of the issue suffers from diabetes and has multiple sclerosis and it has emerged that he is a dependant member of the family within the meaning of the Family Law (Divorce) Act, 1996. The dependent child is J.A.C junior.

3. The Applicant separated from the Respondent about October 1979, when she returned with the three children to reside in Ireland.

4. Pursuant to proceedings instituted by the Respondent in an English Divorce County Court entitled “In the Divorce Registry No. 14573 of 1979 Between J.A.C. Petitioner -v- M.E.C., Respondent ” a consent order was made by the Court on the 22nd day of May 1980 whereby the marriage between the Applicant and the Respondent was dissolved. On the 6th day of October 1983 in the said English proceedings a further consent order was made whereby it was ordered that the Petitioner should pay the Respondent a lump sum of £24,000 Stg. in full and final settlement within six months of the date of this order.

5. There was also payment to be made in respect of each of the three children at the rate of £520 per annum, payable weekly in advance, per child, until each child would attain the age of 18 years or shall cease full time education. In pursuance of this Court Order, the Respondent paid the Applicant the sums due and owing.

6. At the time of their marriage in Sligo both parties gave English addresses as the place of their normal residence.

7. The Respondent married J.O.C. in or around 1989. Both the Respondent and the said J.O.C. have separated and the said J.O.C has instituted proceedings against the Respondent. The Applicant M.E.C seeks inter alia a declaration pursuant to Section 29 of the Family Law Act, 1995 that the validity of a divorce granted by an English Divorce County Court in respect of the marriage between the Applicant and the Respondent is not entitled to recognition within the State. Further relief's are sought from the Court in the event that such a declaration is made.

8. This Court directed that as a preliminary matter, the Court should determine the issues as to whether the parties in the proceedings were domiciled in England at the time of the divorce, or, if, one of them was domiciled there.

9. Both the Applicant, M.E.C and the Respondent originated from more or less the same area. The Applicant went to England. She trained as a nurse. After she got full qualification (but she was not trained as a state registered nurse) she remained living and working in London. She has stated in evidence that it was her intention to continue nursing in England for a while but eventually to return to Ireland. She returned home to Sligo each year to visit her friends. During a visit home in 1965 the Applicant and the Respondent resumed their relationship, as a result the Respondent moved to England. After their marriage they got into the business of pub management.

10. In 1972 the Respondent bought 16 acres of land in County Sligo, near his father’s farm and he put cattle on it. His father looked after the cattle in his absence. The Respondent returned home to Ireland at least three times a year, stocking the land and having a family holiday. In 1976 the Respondent bought a licensed premises and 30 acres in County Sligo. A manager was employed to run the licence premises. The lands were set in conacre.

11. The Applicant states in her evidence that it was the parties long-term plan to come home and live in Ireland and bring up the children there. In relation to the licensed premises evidence was that it was their joint intention to run the pub and live on the premises. The Applicant left the Respondent in 1979 and returned to her mother’s house with her three children. As we have seen, the marriage was dissolved on the 22nd day of May 1980 by the English Divorce County Court. On the 6th day of October 1983 a further consent order was made by which she agreed to accept as full and final settlement £24,000 Stg.

12. In 1984 she returned to her parents and in 1986 she bought her own house in County Sligo with the proceeds from the financial settlement. The parties did not purchase any property in England in the time of their marriage. They never had an English passport but always travelled on an Irish passport. The Respondent was an active member of the Sligo Men’s Association in London and for a period was its chairman.

13. The (Notice Party) Applicant had been divorced and had three children from a previous marriage, the youngest of whom, was born in 1972. From 1979 the Respondent continued living in London with the (Notice Party) Applicant. He took over the lease of another licensed premises shortly after the divorce as the brewery pub he managed was burnt down. In 1992 the Respondent was notified that the brewery wished to terminate his lease on the second licensed premises. The Respondent was offered a number of choices of other licensed premises by the brewery but the Respondent did not take up any of them. He chose instead to return to Ireland. In 1994 the Respondent returned to Ireland with the (Notice Party) Applicant.

14. The Respondent sold the pub in Sligo in 1988. His evidence was that the manager retired and he had difficulty in finding a replacement. He also said that the (Notice Party) Applicant had indicated that she would not live there. He also sold the plot of land near his fathers farm to finance the divorce settlement already recited. He bought a derelict house on 15 ½ acres of land in 1986 which he intended to occupy as a home. He moved into this house with the (Notice Party) Applicant in 1993. In 1989 he bought land (approximately 12 acres in Cavan (which is where the (Notice Party) Applicant originated) which he gave her as a wedding present. The Respondent also bought, at some stage during this period, a further 15 acres of land in Sligo near his own home, for the purpose of farming. He is presently a farmer. In evidence he has sworn that he always intended to return to Ireland.

15. The (Notice Party) Applicant and the Respondent own two houses in London and the Respondent owns another house in his own name. All of these houses are rented out.

16. According to the (Notice Party) Applicant a house was bought in London in 1990 which was intended to be the family home. Two of the (Notice Party’s) Applicant’s children lived in the house from 1990 as the now (Notice Party) Applicant had sold her house to avail of a local government grant.

17. The (Notice Party) Applicant and the Respondent lived at the premises for a six month period after leaving the second licensed premises and before returning to Ireland.

18. The (Notice Party’s) Applicant’s evidence was that she never intended to return to stay permanently and that the Respondent still intends to return to England, as she does. She understood the house bought in Sligo to be just for the purpose of a holiday home.

19. The Court (Murphy J on the 16th day of March, 2000) directed that the Attorney General be joined in both proceedings. When the divorce was obtained in England both parties averred that they were domiciled in that jurisdiction.

20. The specific issue on which the Attorney General was joined was to argue against the proposition that the Irish Courts should extend recognition to a decree of divorce granted by the Courts of a country in which one (or both) of the spouses had been resident (but not domiciled) prior to and at the time of the institution of the divorce proceedings. The Attorney General argued that the decision in the High Court ( McG. J. -v- O.W . [2000] 1 ILRM 107 and 2000 I.R. p.96 was wrong and should not be followed insofar as it relates to this issue.

21. In the instant case the Court heard evidence on the 28th, 29th and 30th days of March. If (on the basis of that evidence) the Court were to decide that either one of the spouses (i.e., M.E.C or J.A.C.) was domiciled in England at the time of the institution of the divorce proceedings then the English decree of divorce would be entitled to recognition in Ireland (see W -v- W . [1993] 2 I.R. 476). At the conclusion of the evidence Counsel on behalf of the Attorney General indicated to the Court that the Attorney General did not propose to take any stance on this factual issue.

22. If, however, the Court were to find as a fact that neither M.E.C. or J.A.C. had been domiciled in England at the time of the institution of the divorce proceedings but also found as a fact that one or both of them had been resident in England prior to the institution of the divorce proceedings then the issue in which the Attorney General was interested would arise for argument. The Court was informed that detailed written legal submissions have been prepared on this issue. However, it is the view of the Attorney General that this issue is more appropriate for full arguments rather than submissions alone.

23. As stated by Carroll J. in K.E.D. -v- M.C . [unreported High Court, 26th September, 1984]:-

24. The burden of proving a change in domicile lies upon the person who alleges that a change has occurred. See Griffin J. in T. -v- T . [1983] I.R. 29 at p. 35:-

25. In the old days one of the parties might produce such proof by purchase of a grave to bolster a claim as to the nature of the alleged domicile. That occurred in the present case. However, it would appear that while undoubtedly Mr. J.A.C bought a grave in London, this was for an Irishman called O’Malley who used to drink in the Respondent’s pub, and who died penniless. A number of people combined together and J.A.C. bought the grave for Mr. O’Malley. Clearly, the purchase of that grave is indeed irrelevant in this case!

26. The issue is a simple one. What was the domicile of the parties at the time of the divorce order granted by the English Court on the 4th July, 1980. There is no doubt on the evidence by M.E.C. She stated that she had the intention of returning to Ireland in the future. In his own evidence the Respondent intended to return to Ireland. He did not waive his domicile of origin. However, the Applicant J.O.C’s evidence is in direct conflict with that of the Respondent. She was in a relationship with the Respondent at the time of the divorce therefore her evidence is of some relevance. However, her evidence does not establish as against the evidence of the Applicant M.E. and the Respondent that at the time of the divorce either of the two parties were domiciled in England. Of course it was wrong to aver to the English Court that they were domiciled in England. Any application based on apparent perjury must be suspect. However, this Court is quite satisfied as a matter of probability that both parties were resident in England, but not domiciled there. In view of the stand of the Attorney General and in view of the above findings, we must now ask the Court to reconvene so that all the parties may discuss the implications of this finding.

27. The Court has already given judgment on the issue. The Court reconvened after the finding as a matter of probability that both parties were residents in England but not domiciled there at the time of the English divorce on 4th July, 1980. Oral and written submissions were made by all parties.

28. There are two sets of proceedings before this Court. The case of J.O.C. Applicants and J.A.C. Respondent issued on 21st October, 1998. In those proceedings the Applicant was married to the Respondent on 29th September, 1989 at the Westminster Registry Office in the district of Westminster in the city of Westminster, London, England. There are no children of this marriage. It is alleged that the Applicant and the Respondent had been ordinarily residents within this jurisdiction for a period of one year prior to the date of the commencement of these proceedings. It is alleged that there was not a normal marital relationship between the parties for a period in excess of one year prior to the date of issue of these proceedings. She sought a Judicial Separation pursuant to Section 2 (1) (f) of the Judicial Separation and Family Law Reform Act of 1989 and also sought a property adjustment order. She also sought an Order pursuant to Section 8 directing the Respondent to make maintenance payments/lump sum payments to cover support and maintenance of the Applicant pursuant to Section 11 and an Order pursuant to Section 10 (1) (a) (ii) for the sale of the family home at Co. Sligo and the division of proceeds in such manner as the Court may see fit and such pensions adjustment orders pursuant to Section 12 and/or 13 as will ensure that the Applicant remains beneficiary to the Respondent’s pension and an Order pursuant to Section 15 for the sale of such properties as the Court shall see fit and an Order pursuant of Section 14 extinguishing the share to which the Respondent will otherwise be entitled in the Applicant’s estate by virtue of the Succession Act or otherwise and an Order pursuant to Section 15 (a ) the Respondent shall not be entitled to claim from the estate of the Applicant after her death. This matter came before Mrs. Justice McGuinness on 6th November, 1998. The application was expressly and was basically to freeze the Respondent’s assets. This Order was continued and confirmed on 30th October, 1998 by Ms. Justice Laffoy. [The present cases are very similar to the situation in McG -v- W (2000) 1 ILRM 107 (2000) IR p.96.]

29. The kernel of this regards the validity or otherwise of a divorce obtained by the Respondent J.A.C. in England on 2nd May, 1980.

30. To recap M.E.C. married the Respondent JAC on 18th May, 1968 in County Sligo. In 1968 the Applicant and the Respondent moved to England. The parties separated in October 1979 and the Applicant returned to Ireland. A divorce was obtained by the Respondent in England on 2nd May, 1980. The Respondent married J.O.C. the Notice Party under the proceedings of 29th September, 1989 in the District Registry of Westminster, England.

31. Proceedings were brought against the Respondent by the Notice Party in 1998 in which Budd J granted a decree of Judicial Separation to J.O.C. ( the Notice Party) on 4th May, 1999.

32. Subsequent to the aforesaid decree of Judicial Separation a special summons issued dated 19th November, 1999 in which the Applicant (M.E.C) of these proceedings seeking inter alia a declaration that the divorce granted in London in 1980 was not entitled to recognition in Irish Law.

33. It is submitted on behalf of the Attorney General that historically the approach of the Irish courts in regard to the recognition of foreign divorces has been to satisfy themselves that the foreign Court had jurisdiction over the parties in the eyes of Irish law. Once satisfied that the foreign Court was entitled to jurisdiction, the Irish Courts did not concern themselves with the grounds on which the divorce was granted in the absence of fraud or collusion.

34. In the instant case J.A.C is living in the same house as one of his “wives” and is being transported to and from the Court by the other “wife”. This is extraordinary and would suggest some sort of collusion. However all three parties have sworn that there is no collusion. Upon the somewhat unusual circumstances just detailed there is little ground for this suggestion. Until recently the Irish Courts took the view that the Courts of the place where both spouses were domiciled had jurisdicion to dissolve the marriage. Coexisting with that rule was a seperate rule namely that the domicile of a wife was determined as that of her husband.

35. An additional ground of recognition was identified in England in Armitage -v- The Attorney General (1966) P. 135 to the effect the Courts should recognise a divorce recognised (though not granted) by the Courts of the spouses common domicile. However, none of the Irish decisions have ever expressly acknowledged this as a ground of recognition prior to the 1986 Act.

36. The prospective abolition of the dependant domicile of the wife by the Domicile and Recognition of Foreign Divorces Act, 1986 was accompanied by the “substitution” of a new rule for the common law rule. The statutory rule which applies only to a divorce granted after the 2nd October, 1986 is that a divorce shall be recognised if granted in the country where either spouse is domiciled at the date of the institution of the proceedings for divorce.

37. The 1986 Act introduced further changes and in particular gave statutory recognition to the rule in Armitage -v- AG (1966) p.135. In W -v- W (1993 2 IR 476) the Supreme Court found that the concept of dependant domicile had not survived the coming into force of the Constitution. The Court further found that this judicial “discovery” necessitated a new rule as to the recognition of foreign divorces granted prior to the 2nd October 1986 . The rule adopted by the Supreme Court was that a divorce would be recognised if granted by the Courts of the country where either spouse was domiciled at the time of the proceedings for divorce.

38. In the present cases this Court is satisfied that neither party was domiciled in England at the relevant time but were residents there. In the recent case of McG -v- W (2000) ILRM 107 (2000) IR 96 the Attorney alleges that the High Court purported to extend the rules regarding recognition so that a divorce would be recognised if granted by the Courts of the country where one of the spouses was resident for one year at the time of the proceedings for divorce. In that case the divorce had been granted in England in 1985. The Attorney submitted that this decision was wrong. That rules of recognition cannot and should not be judicially developed in this fashion, particularly in regard to foreign divorces granted prior to the 15th Amendment of the Constitution.

39. The Attorney argues that if it is accepted that the rule in Armitage -v- AG did not form part of Irish law prior to the coming into force of the Domicile and Recognition of Foreign Divorces Act, 1986 then - (in respect of divorces granted after the 2nd October, 1986) the recognition rules are to be found exclusively in the Domicile and Recognition of Foreign Divorces Act, 1986.

40. In respect of divorces granted prior to 2nd October, 1986 the recognition rules are to be found in the modification of the previous common law rule enunciated by the Supreme Court in W -v- W (1993)2 IR 476. He refers in particular to the observations of Egan J:-

41. The Attorney further submitted that it is in theory open to the Courts to develop the common law rules regarding a divorce granted prior to the 2nd October, 1986. However, it is submitted that it is not open for the Courts to amend the rules which govern divorces granted after the 2nd October, 1986 in that the recognition of such divorces is governed exclusively by Statute. In McG -v- W (2000) IR 96 (2001) IRLM 107 at 117, McGuinness J appeared to take the view that it was open to the High Court to modify not only the common law rule regulating the recognition of divorces granted prior to 2nd October, 1986 but also the statutory rule regulating the recognition of divorces granted after the 2nd October, 1986.

42. The Attorney submitted that this view is incorrect. What Section 5 (1) of 1986 Act did was to substitute a “rule” for a “rule of law”. The latter being the statutory term for a judge made rule. It is submitted that while a Court can develop a rule of law (i.e., a judge made rule) there is in fact no judge made rule to develop as regards of the recognition of divorces granted after 2nd October, 1986 as a judge made rule had been “substituted” by a statutory rule. If it had been the intention of the Oireachtas to preserve the power of the High Court to develop its own rules in regard to recognition of divorces granted after 1986 it could have easily done so. For example by formulating the Section in terms such as :-

43. To modify the statutory rule applicable to foreign divorces granted after 2nd October, 1986 would be contrary to Article 15.2 of the Constitution.

44. While it is accepted by the Attorney that the judge made rules regarding recognition of divorces granted prior to the 2nd of October, 1986 are, in theory, susceptible to judicial developments, it is submitted that it is undesirable that the rules regarding recognition of foreign divorces should differ depending on the rather arbitrary criterion of the date on which the 1986 Act came into force. As observed by Blarney J in W -v- W 1993 2 IR 476 the Court in settling the judge made rules on recognition “may not leave out of account” the Act of 1986.

45. The Attorney continues that if contrary to his previous submission the rule of recognition laid down by the Act of 1986 is capable of judicial development the question that arises as to whether development along the lines of McG -v- W is necessary or desirable. It is submitted that the answer to the question is “no” for two reasons:-

46. The recognition of foreign divorces is an area of considerable complexity. The amendment of recognition rules to do justice in one case can cause hardship and injustice in another case. Take the following situation: H and W are married in Ireland in 1970. Difficulties arise and in 1973 W goes to England where she obtains a divorce on the basis of residence in 1977. She returns to Ireland in 1978 and is subsequently reconciled with H. They decide to purchase a home and start a family and to this end they consult a lawyer. The lawyers advice is unequivocal - the 1970 marriage subsists in Irish law and they are still married. Is it consistent with justice for them now to be deprived of their marriage status under Irish law. The difficulties arising out of the foregoing example can be multiplied for example the application of the Family Home Protection Act, 1976 or the entitlement of one spouse to a survivors pension under an occupational benefit scheme. He gives another example of hardship in the following circumstances:-

47. A marries B. He moves to England for a few years but intends ultimately to return to Ireland. He obtains a divorce in England in 1975 which is not then entitled to recognition in Ireland. He then marries C in England but they eventually separate. B dies and A marries D in Ireland. (His marriage to C not entitled to recognition in Ireland.) If the residence is retroactively adopted as a ground of recognition then:

48. The Application of the current domicile based recognition rules is also capable of producing hardship. Indeed the concept of domicile is itself capable of creating problems. These problems are not capable of resolution by a simple modification of the recognition rules- only a manifold modification of the recognition rules which caters for all the variations is appropriate. Judicial intervention is not. The Courts have traditionally refrained from intervening in these circles.

49. He referred also to Vone Securities -v- Cooke (1979) I.R. 59; L -v- L (1992) 2 I.R. Where the court says:-

50. He also referred to Tuohy -v- Courtney (1994) 3 I..R. 1. In K.D. (otherwise C) -v- N.C. (1985) I.R. 697 in a case specifically concerning the recognition of foreign divorce decrees the Supreme Court was invited to apply the “real and substantial connection” tests developed by the House of Lords in Indyka -v- Indyka (1969) IAC 33..

51. In refusing to do so the court relied not only on the fact that the point had not been argued in the High Court but also stressed the difficulties which could arise from retroactive modification of the common law rules on recognition. Finlay C. J. felt that to apply the Indyka test “would be much more likely to lead substantial injustice in the application of any decision of this court to other parties in different cases then it could possibly contribute to any requirements of justice in the instant case before us.”

52. The hazards of judicial development of the law on recognition are well illustrated by the fact that despite the best efforts of the English courts in Indyka -v- Indyka the issue was soon revisited by legislation.

53. A further argument in favour of legislative rather than judicial development of the law on recognition is that pursuant to Article K3 of the Treaty on European Union had thrown up an convention on jurisdiction and the recognition and enforcement of judgments in matrimonial matters (1998 OJC 221).

54. He argues that in McG McGuinness J felt that in formulating rules of recognition she could not on the authority of W -v- W leave out of account the provisions of the Family Law (Divorce) Act, 1996 and in particular the provisions regulating the jurisdiction of the Irish courts to grant a divorce. In fact what Blaney J said in W-v- W was the judge made recognition rules could not leave out of account statutory recognition rules as opposed to statutory jurisdictional rules. It was submitted insofar as the 15th Amendment and the 1996 Act provide any justification for the judicial modification of the recognition rules then such justification is only operative with effect from the 15th June, 1996. In the normal course of events a statute operates prospectively. Likewise it is submitted amendment to the constitution does unless it is expressly declared to operate retroactively (See J M Kelly the Irish Constitution 3rd Ed. at p.13).

55. On the issue of “Stare Decisis” the Court considers Irish Trust Bank of Ireland 1976 ILRM 50: Walsh -v- President of Circuit Court and DPP 1 ILRM 325. Most if not all of the cases opened in McG -v- W 2000 1 ILRM were opened in this Court. However, the Attorney General in this Court has also opened B.L. -v- M.L., Tuohy -v- Courtney, Larkin Vone Securities -v- Gerard Cooke and Bank of Ireland -v- Laffin mainly to support his argument that Courts must not legislate.

56. The Notice Party rejects the Attorney’s argument that judicial development of recognition rules to do justice in one case, will cause hardship and injustice in many other cases. The Notice Party argues that the current rules already cause hardship in many instances.

57. In relation to the Attorney’s submission regarding the undesirability of having different rules of recognition depending on whether the divorce was granted before or after the 2nd October, 1986, the Notice Party submits that this undesirable consequence must be considered in light of the imminent coming into force of Council Regulation (EU) 1347/2000 of the 29th May, 2000. This should overhaul the law on recognition of foreign divorces.

58. Each case must be determined on its own facts. The facts in this case differ slightly from McG -v- W . Moreover, the Attorney General did not appear in that case. Matters were argued in this Court by him and indeed by the other parties which were not ventilated in McG -v- W.

59. The mere fact that the Oireachtas are slow to deal with many problems in the matrimonial field does not in itself give support to the court’s jurisdiction to legislate. As far back as the 1950’s Mr. Justice Barra Ó Briam, President of the Circuit Court (AG -v- Ballins 1964 In Jur R14) expressed the hope that the legislature would look at the whole question of bigamy. Nothing has yet been done to remedy the defects identified.

60. If the grounds of recognition are retrospectively extended to include the residence of either party then that will have serious implications for the way in which the State and many of its citizens have ordered their affairs. In an Affidavit sworn by Ms. O’Mahony of the Chief State Solicitors Office, she avers that the 1991 Census showed that the marital status of 6,103 residents was regulate by foreign divorces; by 1996 that number had increased to nearly 10,000. The Registrar General and the Department of Foreign Affairs in the granting of Nulla Ost ;a certificates work on domicile not by residence.

61. The Court is aware that there may well be a very substantial change in the whole law of recognition of foreign divorces in the very near future. There will almost certainly be referend on “Brussels II” and the “Nice Agreements”. However, this Court cannot assume the result of referenda or prospective legislation.

62. Therefore, this Court, being satisfied that neither party to the divorce granted by an English Divorce Court in respect of the marriage between the Applicant M.E.C. and the Respondent J.A.C. was domiciled in England at the time, finds that this divorce is not entitled to recognition within the State at this time. The Court will make the appropriate orders.