A v B
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 02 December 2021 |
| Neutral Citation | [2021] IEHC 802 |
| Docket Number | [2019 No. 37 M] |
| Court | High Court |
[2021] IEHC 802
[2019 No. 37 M]
THE HIGH COURT
Ms A has commenced proceedings under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Under s.196(3) of that Act, the court may only exercise jurisdiction in her proceedings if, amongst other matters, both Ms A and Mr B were ordinarily resident in Ireland throughout the one-year period prior to their relationship ending. Mr B claims that this criterion is not met in this case. He requests that the court (i) declare that it cannot exercise jurisdiction in these proceedings, and (ii) strike them out. The court considers that both parties met the statutory residence requirement throughout the relevant one-year period. It has, therefore, declined the reliefs sought.
JUDGMENT of Mr Justice Max Barrett delivered on 2 nd December 2021 .
. By special summons of 27 th June 2019, Ms A seeks certain reliefs under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
. By notice of motion of 2 nd December 2019, Mr B seeks various reliefs, the sole principal reliefs now arising for consideration being an order (i) declaring that the court cannot exercise jurisdiction to determine the relief sought as neither party was ordinarily resident in Ireland throughout the one-year period prior to the end of the relationship between them (which Ms A claims was in December 2018); (ii) striking out Ms A's proceedings on the basis that this Court cannot exercise jurisdiction for the reasons set out in (i).
. To put a statutory gloss on matters, what the court is being asked to do is determine whether Ms A will be able to establish that she satisfies the criteria set out in s.196(3) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Section 196(3) provides as follows:
“ The court shall only exercise its jurisdiction to hear and determine an application for an order for redress referred to in section 173 if both of the cohabitants concerned were ordinarily resident in the State throughout the one-year period prior to the end of their relationship, and either of the cohabitants – (a) is domiciled in the State on the date on which the application is made, or (b) is ordinarily resident in the State throughout the one-year period that ends on that date.”
. (Section 173 allows application for redress in respect of an economically dependent qualified cohabitant. Under s.173(2) if such a cohabitant “ satisfies the court that he or she is financially dependent on the other cohabitant and that the financial dependence arises from the relationship or the ending of the relationship, the court may, if satisfied that it is just and equitable to do so in all the circumstances” make an order under any or all of certain provisions of the Act of 2010).
. In his grounding affidavit, Mr B avers, amongst other matters, as follows:
“ 5. I say that when I read the Special Summons, I was very concerned by the assertions made therein. I beg to refer to paras. 2 and 3 of the special indorsement of claim to the Applicant's Special Summons. In the said paragraphs, the Applicant claims as follows:
‘2. The Parties herein were ordinarily resident in the State throughout the one-year period to the end of their relationship. The relationship ended in or about December 2018.’
‘3. The Applicant…resides temporarily since December 2018 in…[EU Member State 1]’.
6. I say that these assertions are incorrect and that neither this deponent nor the Applicant were ordinarily resident in Ireland throughout the one-year period prior to December 2018….
7. I say that the Applicant at paras. 4 and 5 of her grounding affidavit…avers as follows:
‘4. I say that the Respondent and I were ordinarily resident in the State throughout the one-year period prior to the end of our relationship. The relationship ended in or about December 2018.
5….I resided temporarily for two months from December 2018 until mid-February 2019 in [EU Member State 1]’.
8….[B] y virtue of s.196(3) of the 2010 Act, this…Court shall only exercise its jurisdiction to hear and determine the Applicant's claim for financial relief under s.173 if the Applicant can establish that both this deponent and the Applicant were ordinarily resident in Ireland throughout the one-year period prior to the end of the relationship.
9. I say that the Applicant is a [non-EU Member State]… national and she travels on a [non-EU Member State passport]. I say that the Applicant was not ordinarily resident in this jurisdiction throughout the period of one year prior to December 2018 (which is [the] month [in] which the Applicant avers that our relationship ended). The Applicant, throughout that one year period ending in December 2018 resided in EU Member State 2 and during that period she travelled to and from Non-EU Member State 1, EU Member State 3, EU Member State 4, and Ireland. The Applicant was not ordinarily resident in Ireland for the requisite one-year period prior to the date [on which] she avers that our relationship ended.
9. [ sic] I say that this deponent was also not ordinarily resident in this jurisdiction throughout the one-year period ending in December 2018. I say that I was primarily living in EU Member State 2 throughout that period. I say that [the] Applicant cannot satisfy the pre-conditions set out in s.196(3) of the Act of 2010, to allow this Court to exercise its jurisdiction….
13. I say that the Applicant cannot satisfy the preconditions set out in s.196(3) of the 2010 Act, to allow this Court to exercise its jurisdiction.”
. In her replying affidavit of 21 st January 2020, Ms A avers, amongst other matters, as follows, under the heading “ Ordinary Residence in Ireland for One-Year Period Prior to the End of the Relationship”:
“ 37. I say and believe that both your deponent and the respondent were ordinarily resident in Ireland throughout the one-year period prior to the end of our relationship in or around December 2018. The respondent is domiciled in Ireland.
38. I currently reside temporarily [in EU Member State 1].
39. I first visited the Respondent's property at [Stated Address in Ireland] in November 2012. We thereafter developed a pattern of alternating between the two properties in [Ireland]… and EU Member State 2. We both kept wardrobes of clothes, cars, golf clubs and other items in both locations.
40. We also travelled frequently during our relationship to include travel to [Stated Locations]….
41. Between December 2017-December 2016, save for the five months of May and November, I travelled to and from Ireland in all the other months of that period. My [Stated Parent] is [old]… and is [widowed]…. Because of this, I regularly visit my mother in Non-EU Member State 1.
42. We spent Christmas 2017 in [Ireland]….
43. The Respondent's medical advisors were in [Ireland]…. The Respondent also had ongoing meetings with his professional advisors in [Ireland] to include solicitors, his accountant and other financial advisors.
44. The Respondent never had a bank account in EU Member State 2. The Respondent sent money to the management company which manages the [residence in EU Member State 2]… and they dealt with all the bills. The Respondent also used his credit card. I had an account if we required cash.
45. Save for the Respondent's [residence in EU Member State 2], his main assets are in [Ireland] ….I attended most meetings with the Respondent financial and legal advisors in Ireland.
46. While I continue to reside on a temporary basis in EU Member State 1, I have an Irish Public Service Card and PPS Number. I have an [Irish]… bank account and an Irish credit card. I did travel on a…passport [from Non-EU Member State 1] …as I am a non-EU Member State 1 national but non-EU Member State 1 is not my place of residence….I am registered to vote in local elections in Ireland”.
. Mr Harding is a chartered accountant. He was requested by the solicitor for Mr B to review and analyse certain bank and credit card transactions of the parties with a view to establishing the whereabouts of the users of those bank and credit card accounts during that period. Between that affidavit evidence and the oral evidence of Ms A (which, in truth, was not especially enlightening) it appears that in the one-year period prior to the end of the relationship between herself and Mr B (which Ms A claims was in December 2018), Mr B spent about 85 days in Ireland, about 89 days in Non-EU Member State 1, somewhere above 180 days in EU Member State 2, with in or about 8 days spent in other EU Member States. It is not possible to be much more exact than this. My general sense, having observed and listened to Ms A in the witness box, was to incline to prefer the evidence of Mr Harding, which has been calculated on a fair, reasonable, scientific, and objective basis; the figures just mentioned derive from his analysis. It may be that there are slight ups or downs in the figures but, on the balance of probabilities, the foregoing seems about right. It was clear from the evidence of Mr Harding and that tendered by Ms A in the witness-box that there was going to be a degree of uncertainty as to the precise number of days involved.
. In his affidavit of 20 th May 2020, Mr B avers, amongst other matters, as follows:
“ 18. I…deny that I was ordinarily resident in Ireland throughout the one-year period prior to the purported end of our relationship in and around December 2018. I also deny that the Respondent was so ordinarily resident….I deny that we kept wardrobes of clothes, cars, golf clubs, and other items in both locations. I say that I have established my...
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