C.M. v T.M. (No. 2)

• Jurisdiction: Ireland
• Judge: Barr J.
• Judgment Date: 30 November 1989
• Neutral Citation: 1990 WJSC-HC 945
• Docket Number: 500 Sp Ct 6/1986
• Court: High Court
• Date: 30 November 1989

M (C) v. M (T)

IN THE MATTER OF THE FAMILY LAW (MAINTENANCE OF SPOUSES

AND CHILDREN) ACT, 1976

AND IN THE MATTER OF THE MARRIED WOMEN'S STATUS ACT,

1957

BETWEEN

C M

APPLICANT

AND

T M

RESPONDENT

1990 WJSC-HC 945

500 Sp Ct 6/1986

4054P/1986

THE HIGH COURT

Synopsis:

CONSTITUTION

Personal rights

Domicile - Acquisition - Married woman - Independence - Recognition - Prevention by rule of law - Contravention of married woman's right to equality and independence - Rule of law no longer applicable - (1986/500 Sp - Barr J. - 30/11/89)

|M. v. M.|

DOMICILE

Acquisition

Married woman - Independence - Recognition - Prevention by rule of law - Constitution - Personal rights - Contravention - Rule of law no longer applicable - (1986/500 Sp - Barr J. - 30/11/89) - [1991] ILRM 268

|M. v. M.|

HUSBAND AND WIFE

Divorce

Foreign decree - Recognition - Effect - Maintenance - Pre- existing domestic order - Effect of divorce on maintenance order - Whether respondent bound to continue maintenance payments - Domicile of former wife - Constitution - Personal rights - Independent domicile of married woman established - Maintenance order still operative - Married Women's Status Act, 1957, s. 12 - Family Law (Maintenance of Spouses and Children) Act, 1976, ss. 5, 7 - Domicile and Recognition of Foreign Divorces Act, 1986, ss. 1–3 - Constitution of Ireland, 1937, Articles 40, 41 - (1986/500 Sp - Barr J. - 30/11/89) - [1991] ILRM 268

|M. v. M.|

Citations:

M(C) V M(T) UNREP HIGH BARR 15.2.88

M(C) V M(T) 1987 IR 152

FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT 1976 S5

MARRIED WOMEN'S STATUS ACT 1957 S12

MURPHY V AG 1982 IR 241

CLARKE, STATE V ROCHE 1987 ILRM 309

L(B) V L(M) 1989 ILRM 528

CONSTITUTION ART 41

W V SOMERS 1983 IR 122

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

T V T 1983 IR 29

B(L) V B(H) 1980 ILRM 257

ESTIN V ESTIN 334 US 541

LYNN V LYNN 302 NY 193

WOOD V WOOD 1957 P 254

FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT 1976 S5(1)(a)

DOMICILE AND RECOGNITION OF FOREIGN DIVORCES ACT 1986

CONSTITUTION ART 40

CONSTITUTION ART 40(3)

AMERICAN JURISPRUDENCE 24 2ND ED PARA 1126

ACCESSION CONVENTION 1978

1 Judgment of Barr J. delivered on the 30th day of November, 1989.

2 The facts of this case are set out in my judgment delivered on 15th February, 1988 (unreported). Particulars of the various proceedings between the parties in this jurisdiction and in England are contained in the judgment of Egan J. delivered on 13th February, 1987. On that date the divorce decree nisi obtained by the husband in England had not been made absolute and on foot of the wife's application for relief under the Family Law (Maintenance of Spouses and Children) Act, 1976(the 1976 Act) my learned colleague made an interim maintenance order which provides that the husband shall pay to the wife monthly the sum of £2,500 for her maintenance and that of the children of the marriage, such payments to continue until further order. The decree nisi was made absolute on the husband's application on 3rd March, 1987. No application has been made by either party in the matrimonial proceedings (or otherwise to the courts in England) regarding maintenance for the wife or children or as to any other financial matter between the parties.

3 My earlier judgment relates to the issue as to whether the divorce obtained by the husband in England is one which is entitled to recognition in Irish law and I have held that it is so entitled. However, it was agreed that argument on two further issues should be postponed pending a decision on recognition of the divorce in Ireland. I have now heard further submissions from counsel and this judgment relates to three matters which remain for decision i.e. (i) the domicile of the wife; (ii) whether the wife and children are entitled to continuing maintenance under section 5 of the 1976 Act and whether the wife is entitled to pursue a claim for relief under section 12 of the Married Women's Status Act, 1957(the 1957 Act) having regard to the final dissolution of the marriage and (iii) the constitutional interpretation of the 1976 Act, section 5 and the 1957 Act, section 12 having regard to the final dissolution of the marriage.

THE DOMICILE OF THE WIFE:

4 The wife's claims for relief on foot of the 1976 and 1957 Acts were initiated by Special Summons dated 6th June, 1986. Her domicile on that date and since then is crucial to her right to continuing personal maintenance from the husband under the 1976 Act, at least from the date of final dissolution of the marriage on 5th March, 1987, and to the declarations which she seeks under the 1957 Act.

5 Since the breakdown of the marriage in 1985 the wife has continued to reside in Ireland. The children of the marriage live with her and are being educated in this state. She has expended her half of the proceeds of sale of S C in purchasing an alternative dwellinghouse at O, near K, which is now the family home. She has stated in evidence, and I accept, that she has set up a permanent home at O where she and the children will reside indefinitely and that it is her intention that the children will complete their secondary education in Ireland. Apart from holidays and brief visits abroad, the wife has resided continuously in Ireland since she first came to this country in 1979. The fact that she has continued to do so after the breakdown of the marriage is strongly corroborative of her evidence that she has decided to remain indefinitely in Ireland and to maintain her permanent family home in this jurisdiction.

6 On these facts I am satisfied that from the time when the wife decided in 1985 after the breakdown of the marriage to remain in this country and to set up a permanent home for herself and the children here, she acquired an Irish domicile of choice.

7 The wife also declared in a will made by her in January, 1985 that she was domiciled in Ireland. However, that was before the marriage had finally broken down and that declaration may have been motivated by tax considerations relating to her husband's business. For the reasons advanced in my earlier judgment as to the husband's domicile, I am satisfied that the wife did not acquire an Irish domicile of choice until she decided to make her home permanently in Ireland after the final breakdown of the marriage later in 1985.

8 It is argued on the husband's behalf that the wife was not capable in law of acquiring an independent domicile of choice until the Domicile and Recognition of Foreign Divorces Act, 1986came into operation on 2nd October of that year. That Act abolished the old rule of law that on marriage a woman acquired the domicile of her husband and is incapable of having or acquiring a domicile which is independent of his while the marriage subsists.

9 It was not necessary to decide the issue as to the wife's domicile in my earlier judgment. However, I made the following observations on the doctrine of dependent domicile at page 16 of the transcript.

"I would have no hesitation whatever in holding that the old rule was a relic of matrimonial female bondage which was swept a way by principles of equality before the law and equal rights in marriage as between men and women which are enshrined in the Constitution — see in particular Article 40 (1 and 3) and Article 41. It appears that the only possible argument against such a conclusion is that it might create some uncertainty for spouses and others who may have been affected by the rule in times past. It does not seem to me that that argument could possibly save an alleged rule of law which is patently unconstitutional and can be unjust and unreal in its application as would have been the case if the facts regarding the initiation of the English divorce were reversed and the wife was seeking recognition for it under the Act. Furthermore, it would be open to the court in such circumstances to follow the course adopted by the Supreme Court in Murphy .v. Attorney General 1982 I.R. 241 and specifically limit the retrospective effect of the decision. It is also worthy of note that in the State (Clarke) .v. District Justice Roche (Senezio, Notice Party) 1987 I.L.R.M. 309 the Supreme Court in effect struck down as unconstitutional a long-standing practice in criminal procedure under which complaints were received and summonses were issued by District Court clerks or Peace Commissioners and that this was done without imposing any specific limitation as to the retrospective effect of that decision."

10 Since my earlier judgment herein was delivered I have had occasion to consider in some depth the constitutional implications of the rights of married women in matrimonial property — see my judgment in L. .v. L. delivered on 3rd October, 1988 (unreported). I have no doubt that the old doctrine of dependent domicile of a wife is contrary to the spirit and intent of Article 41 of the Constitution. In my view the court would be failing in its duty to interpret and develop the law in a way which is in harmony with the philosophy of Article 41 as to the status and rights of married women if it held that the doctrine of dependent domicile of a wife had...