Bank of Ireland v Caffin

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 22 December 1971
• Docket Number: [1971. No. 64 Sp.]
• Date: 22 December 1971

[1971. No. 64 Sp.]

Bank of Ireland v. Caffin

In the Matter of the Estate of Haden Crawford Caffin, deceased—THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND and DONALD CARTER GOODBODY

Plaintiffs

and

KATHLEEN ROSA ELSIE CAFFIN and YVONNE CAFFIN

Defendants.

Conflict of laws - Marriage - Dissolution - Husband and wife domiciled in England - Marriage dissolved by order of English court - Husband remarrying in Ireland - Death of husband leaving both wives surviving - Whether second wife was the "spouse" of husband - Succession Act, 1965 (No. 27 of 1965), s. 111, sub-s. 1 - Constitution of Ireland, 1937, Articles41, 50.

Special Summons.

The facts have been summarised in the head-note and they appear in the judgment of Kenny J., post.

The indorsement on the plaintiffs' summons was in the following terms:—

"The plaintiffs' claim is as executors and trustees of the will and codicil thereto mentioned in the title hereof of Haden Crawford Caffin for:—

1. The determination of certain questions arising in the administration of the estate and the trusts of the said will and codicil of the said deceased, namely:—

• (a) Whether the defendant, Kathleen Rosa Elsie Caffin, is the spouse of the deceased for the purposes of Part IX of the Act mentioned in the title hereof.

• (b) If she is such spouse, whether she is entitled to a share by way of a legal right under Section 111 of the said Act.

• (c) Whether the plaintiffs must, pursuant to the provisions of sub-s. 4 of s. 115 of the said Act, give notice in writing of a right of election under the provisions of the said section to the defendant, Yvonne Caffin.

  • 2. Further and other relief.

  • 3. Costs.

The first-named defendant is sued as a person claiming to be the spouse of the said deceased and entitled to a legal right in his estate, and the second-named defendant is sued as a person who might be declared to be entitled to a legal right in his estate."

Section 111, sub-s. 1, of the Succession Act, 1965, provides:—"If the testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate." Section 112 of the Act of 1965 states that "The right of a spouse under section 111 (which shall be known as a legal right) shall have priority over devises, bequests and shares on intestacy." Section 115, sub-s. 1 (a), of the Act of 1965 provides:—"Where, under the will of a deceased person who dies wholly testate, there is a devise or bequest to a spouse, the spouse may elect to take either that devise or bequest or the share to which he is entitled as a legal right." Section 115, sub-s. 4, of the Act of 1965 enacts that "It shall be the duty of the personal representatives to notify the spouse in writing of the right of election conferred by this section . . ."

Article 41 of the Constitution of Ireland provides as follows:—

"1. 1 The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

• 2 The State, therefore, guarantees to protect the family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

2. 1 In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

• 2 The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

3. 1 The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

• 2 No law shall be enacted providing for the grant of a dissolution of marriage.

• 3 No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved."

Section 111, sub-s. 1, of the Succession Act, 1965, provides that, if a testator leaves a spouse and no children, the spouse of the testator shall have a right to one half of his estate. The deceased had married the second defendant in England. In the month of May, 1956, an English court had ordered that the marriage be dissolved on the ground that the deceased had been deserted by the second defendant; at that time the deceased and the second defendant were domiciled in England. Subsequently the deceased married the first defendant in Ireland. There was no issue of either marriage. On the death of the deceased in...