O'K v A

JurisdictionIreland
JudgeMr. Justice Garrett Sheehan
Judgment Date01 July 2008
Neutral Citation[2008] IEHC 243
Date01 July 2008
CourtHigh Court
Docket Number[2007 No. 89 M]
O'K v A
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW
REFORM ACT 1989, AND IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

O'K.
APPLICANT

AND

A.
RESPONDENT

[2008] IEHC 243

[No. 89 M/2007]

THE HIGH COURT

FAMILY LAW

FAMILY LAW

Jurisdiction

Judicial separation - Habitual residence - Forum non conveniens - Whether court entitlement and/or competence to hear judicial separation application - Whether doctrine of forum non conveniens survived Brussels Regulation - PAS v FAS [2004] IESC 95 (Unrep, SC, 24/11/2004), Marinos v Marinos [2007] EWHC 2047, [2007] 2 FLR 1018 and CM v Delegacion Provincial de Malaga [1999] 2 IR 363 followed - Judicial Separation and Family Law Act 1989 (No 6), ss 31(ii) and 31(iv) - Constitution of Ireland 1937, art 41 - Council Regulation (EC) No 1347/2000 - Council Regulation (EC) No 44/2001, articles 2, 4, 4(i), 5 and 5(ii) - Council Regulation (EC) No 2201/2003, articles 3 and 8 - Found court had jurisdiction (2007/89M - Sheehan J - 1/7/2008) [2008] IEHC 243

O'K v A

Facts: The applicant and respondent were married in the US and entered a pre-nuptial agreement there. They had children and moved to Ireland and back to the US and divided their time between locations. The issue arose as to habitual residence pursuant to Article 3 Council Regulation EC No. 2201/2003. The respondent sought an order finding that the Irish courts lacked jurisdiction to determine issues as to domicile and habitual resident in judicial separation proceedings.

Held by Sheehan J. that the applicant was an Irish and US citizen and was habitually resident in Ireland at the commencement of proceedings and domiciled in Ireland. The children were also habitually resident, as was the respondent. The requirements of Article 3 Council Regulation EC No. 2201/2003 were complied with. The Court had exclusive jurisdiction in the proceedings as to parental responsibility and judicial separation. The respondent could not establish that Florida was a more appropriate venue.

Reporter: E.F.

FAMILY LAW ACT 1995

GUARDIANSHIP OF INFANTS ACT 1964

EEC REG 2201/2003 ART 3

EEC REG 1347/2000

EEC REG 2201/2003 ART 8

MARINOS v MARINOS UNREP MUNBY 3.9.2007 2007 EWHC 2047(FAM)

EEC REG 44/2001 ART 2

EEC REG 44/2001 ART 4

EEC REG 44/2001 ART 5(ii)

EEC REG 44/2001 ART 5

EEC REG 44/2001 ART 4(i)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S31(ii)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S31(iv)

OWUSU v JACKSON T/A VILLA HOLIDAYS BAL-INN VILLAS & ORS 2005 ECR I-01383

EEC REG 2201/2003 CHAP II

S (PA) v S (AF) 2005 1 ILRM 306 2005 FAM LJ 2 2004/45/10409

M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103

1. Introduction
2

2 1.1 The respondent in these judicial separation proceedings which were issued on the 16 th November, 2007, and served on him on the 29 th November, 2007, issued a notice of motion on the 4 th March, 2008 seeking an order in the following terms:-

1

An order staying the above application.

2

An order directing the determination, by way of a preliminary issue, of the entitlement and/or competence of this Honourable Court to consider the above entitled application and/or to make any determination thereon on the basis that this Honourable Court lacksjurisdiction to make any determination relating to the marriage and the marriage breakdown of the parties hereto.

3

Further or in the alternative a declaration that this Honourable Court lacks in law, jurisdiction and competence to determine the matter in issue between the parties on the grounds of the domicile and permanent and habitual residence of all the parties in the jurisdiction of the State of Florida in the United States of America, or otherwise by reason of their permanent residence and/or domicile outside the jurisdiction of this Honourable Court in the United States of America.

4

Such further or other order or direction as this Honourable Court shall deem meet.

2. Background
2

2 2.1 The applicant and the respondent met each other in Dublin in 1996 and commenced their relationship shortly thereafter. The applicant was then working and the respondent was also working.

3

3 2.2 The parties went to the United States of America in 1999 to get married. On the 3 rd November, 1999, they entered into a pre-nuptial agreement in the State of Illinois and were married the next day in Florida.

4

4 2.3 Although born in the United States of America the applicant was brought up in Ireland. She is a citizen of Ireland and a citizen of the United States of America.

5

5 2.4 The respondent is a citizen of the United States of America.

6

6 2.5 There are two children of the marriage, namely J. who was born in March, 2003 in the United States of America and D. born in March, 2006 in the United States of America.

7

7 2.6 Both children are citizens of the United States of America.

8

8 2.7 Following their marriage in November, 1999, the parties returned to Ireland for a short time and then moved to Chicago. After some time they moved to Wisconsin, where they purchased a property.

9

9 2.8 In January, 2004, the parties purchased a property in the west of Ireland where they resided as a family from October, 2004 to March, 2005. They then went to Florida where they remained until May, 2005. They purchased a property in Florida but only remained one day after moving in. They then moved to Wisconsin where they remained until September, 2005. The family then moved to Florida where they remained until May, 2006. Between May and August, 2006 they divided their time between Chicago and Florida. In August, 2006 they returned to the home they had purchased in Ireland. The applicant has been residing there with the two children since that time. The respondent resided there for some time, and spent some time in an Irish Rehabilitation Centre for people with alcohol problems. The applicant subsequently became involved with a third party. According to her affidavit this relationship commenced in April, 2007 and ended in June, 2007.

10

10 2.9 The respondent issued proceedings pursuant to the Guardianship of Infants Act 1964, in the District Court in May 2007, and at the same time issued a summons for a barring order and a safety order. In September, 2007, following receipt of a psychologist's report in relation to the welfare of the children, these proceedings were adjourned by consent for a period of six months on consent. The principal terms of the consent were that the parties were to have joint custody of the children with the applicant being the primary carer. The respondent was to leave the family home. The children were to reside with the applicant in the family home and the respondent was to have overnight access with the children every Monday and Wednesday, as well ason alternate weekends. It was agreed that neither of the children would be moved out of the jurisdiction during the six month period.

11

11 2.10 On the 16 th November, 2007 the applicant issued the proceedings that are before this Court in which she claimed, inter alia, a decree of judicial separation, custody of the children and various financial reliefs. The respondent was served personally with these proceedings on the 29 th November, 2007, and he then instituted divorce proceedings in the State of Florida on the 3 rd December, 2007, which were served on the applicant on the 9 th February, 2008.

3. Submissions
2

2 3.1 On behalf of the respondent, Mr. Durcan submitted that the court's jurisdiction in these proceedings could only arise if one of the conditions set out in Article 3 of Council Regulation (EC) No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, otherwise referred to as Brussels II bis was satisfied, and this only gave the court jurisdiction in relation to legal separation. He submitted that Article 8 under the said regulation was the basis of jurisdiction regarding parental responsibility.

3

3 3.2 He submitted that the court when considering where the habitual residence of each of the parties lay would be assisted by the judgment of Munby J., in Marinos v. Marinos [2007] E.W.H.C. 2047 (Fam), approved judgment delivered, 3rd September, 2007.

4

4 3.3 Mr. Durcan further submitted that the evidence did not establish compliance with Article 3 of Council Regulation (EC) No. 2201/2003 and therefore the court had no jurisdiction. He submitted that if the court found it had jurisdiction then theprinciple of forum non conveniens arose and that Florida was the proper venue for dealing with the case.

5

5 3.4 He submitted that the jurisdictional rules in regard to the making of ancillary financial relief orders for a spouse were to be found in Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, otherwise referred to as Brussels I. Counsel argued that Articles 2, 4 and 5(ii) of that Regulation were the basis for such jurisdictional rules. He submitted that on the facts of this case no jurisdiction could arise under Articles 2 or 5 as the respondent was not domiciled in a Member State and that the matter fell within Article 4(i) of Council Regulation (EC) No. 44/2001 and that jurisdiction was therefore determined by the national law of the Member State. He submitted that ss. 31(ii) and (iv) of the Judicial Separation and Family Law Reform Act 1989 were the relevant statutory provisions, the latter subsections providing that the jurisdiction shall only be exercisable where either of the spouses are domiciled in the State on the date of the application commencing the proceedings or is ordinarily resident in the State throughout the period of one year ending...

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