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

• Jurisdiction: Ireland
• Judgment Date: 01 January 1991
• Date: 01 January 1991
• Docket Number: [1986 No. 500 Sp]
• Court: High Court

High Court

[1986 No. 500 Sp]

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

C.M.

Plaintiff

and

T.M., Defendant (No. 2)

Cases mentioned in this report:—

Gaffney v. GaffneyIR [1975] I.R. 133.

Henderson v. HendersonELRWLRUNKUNK [1967] P. 77; [1965] 2 W.L.R. 218; [1965] 1 All E.R. 179; (1964) 108 S.J. 861.

Holden v. HoldenDNI [1968] N.I.7.

In re Joyce; Corbet v. FaganIRDLTR [1946] I.R. 277; (1945) 80 I.L.T.R. 158.

C.M. v. T.M.IRDLRM [1987] I.R. 152; [1988] I.L.R.M. 262.

Murphy v. Attorney GeneralIR [1982] I.R. 241.

Rowan v. RowanDLRM [1988] I.L.R.M. 65.

In re Sillar; Hurley v. WimbushIR [1956] I.R. 344.

The State (Clarke) v. RocheIRDLRM [1986] I.R. 619; [1987] I.L.R.M. 309.

T. v. T.IRDLRM [1983] I.R. 29; [1982] I.L.R.M. 217.

Domicile - Husband and wife - Marriage - Dissolution - Husband obtained foreign decree - English domicile of origin - Tax problems - Irish residence intended for indefinite period - Failure of marriage - Husband returned to England after 6 years - Decree granted after commencement of Domicile and Recognition of Foreign Divorces Act, 1986 - Divorce proceedings instituted before commencement of Act of 1986 - Requirements for displacement of domicile of origin - Whether intention to set up home for an indefinite period had element of permanence required - Whether declaration by person in question prevails against facts indicating contrary conclusion - Whether such declaration has bearing on issue - Effect of Act of 1986 - Whether transitory lacuna in Act of 1986 - Whether husband acquired Irish domicile of choice on taking up residence in Ireland - Whether husband domiciled in England at date petition issued - Whether the foreign decree of divorce within the ambit of the Act of 1986 - Domicile and Recognition of Foreign Divorces Act, 1986 (No. 24), ss. 1, 2, 3 and s. 5, sub-ss. 1, 5 and 7.

Marriage - Dissolution - Foreign decree - Recognition - Domicile - Divorce proceedings - Independent domicile of wife - Domicile and Recognition of Foreign Divorces Act, 1986 (No. 24), ss. 1, 2, 3 and s. 5, sub-ss. 1, 5 and 7.

Constitution - Personal rights - Equality before the law - Dependent domicile of wife - Common law rule - Constitutional validity - Whether fact that interpretation might create uncertainty could save unconstitutional rule of law - Whether court had power to limit retrospective effect of its decision - Constitution of Ireland, 1937, Article 40, ss. 1 and 3 and Article 41.

Special Summons.

By special summons issued in the High Court on the 6th June, 1986, the plaintiff claimed:—

• (a) maintenance for herself and for the two infant children of the marriage pursuant to the Family Law (Maintenance of Spouses and Children) Act, 1976;

• (b) interim maintenance;

• (c) an order in the nature of a declaration as to the plaintiff's beneficial interest and other estate and interest in the defendant's business or, alternatively, an order that she be compensated for work done and services rendered to the defendant in his business as song writer;

• (d) an order declaring the plaintiff to be solely entitled to certain property.

By notice of motion dated the 9th March, 1987, the defendant sought:—

• (a) an order directing that a preliminary issue be tried in proceedings as to the domicile of the plaintiff and the defendant as and from the 7th July, 1986;

• (b) an order that a preliminary issue be tried as to whether the defendant continued to be a spouse of the plaintiff as and from the 3rd March, 1987, the date of the absolute decree of divorce against the plaintiff.

• (c) an order that the issues at (a) and (b) be tried by oral evidence;

• (d) if appropriate, upon the determination of the preliminary issues in relation to (a) and (b), an order dismissing the plaintiff's claims pursuant to the Family Law (Maintenance of Spouses and Children) Act, 1976, and the Married Women's Status Act, 1957.

On the 27th March, 1987, the High Court (MacKenzie J.) refused the motion and fixed a date for hearing.

By notice filed on the 27th March, 1987, pursuant to O. 60 of the Rules of the Superior Courts, 1986, the plaintiff put the Attorney General on notice that an issue as to the validity of s. 12 of the Act of 1957 and s. 5, sub-s. 1 of the Act of 1976 having regard to the provisions of the Constitution might arise in the proceedings in that the defendant was contending that the recognition of a foreign decree of divorce was to oust the Irish courts' jurisdiction to hear and determine applications initiated by a spouse pursuant to the said Acts prior to the commencement of divorce proceedings, notwithstanding that the foreign court made no financial order of alimony or maintenance or regarding the property rights between the parties. The plaintiff was contending that this would be a failure to protect the institution of marriage pursuant to Article 41 of the Constitution, would render the above statutory provisions unconstitutional and would be in conflict with the jurisdiction of the courts guaranteed by Article 34 of the Constitution. A supplemental notice was filed by the plaintiff on the 20th August, 1987, stating that a further issue might arise as to whether the common law concept of the dependent domicile of married women had survived the Constitution and had subsisted until abolished by the Act of 1986. The plaintiff was contending that the rule was incompatible with Article 40, ss. 1 and 3 and Article 41 of the Constitution.

At the hearing of the plaintiff's motion seeking inter alia interim maintenance, before the defendant's decree of divorce was made absolute, the High Court (Egan J.) stated that the question of recognition by the State of any decree absolute between the parties depended in this case on the domicile of the husband and that it was a matter too important to be decided on correspondence and affidavits and could only fairly be resolved at plenary hearing with oral evidence. (See [1987] I.R. 152).

The facts of the case and the relevant statutory provisions have been summarised in the headnote and are set out fully in the judgment of Barr J. infra.

The case was heard by the High Court (Barr J.) on the 31st August, 1987.

The Domicile and Recognition of Foreign Divorces Act, 1986, came into force on the 2nd October, 1986. Section 5, sub-s. 1 of the Act of 1986 provides that "For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby substituted the rule that a divorce shall be recognised if granted in the country where either spouse is domiciled." Section 5, sub-s. 5 of the Act of 1986 provides that the section shall apply to a "divorce granted after" the commencement of the Act. Section 5, sub-s.7 of the Act of 1986 provides that"domiciled" means "domiciled at the date of the institution of the proceedings for divorce".

The plaintiff wife and the defendant husband were married in London in 1975 when both were resident and domiciled in England. They lived in the United States of America for 18 months in order to reduce the husband's tax liability. In 1979 they took up residence in Ireland because of the tax advantages of doing so, because they would be close to their families and friends in England and because the husband would be close to his business associates in London. The marriage broke down in 1985 and the husband returned to England. He initiated divorce proceedings in England by petition dated the 7th July, 1986 and was granted a decree of divorce absolute on the 3rd March, 1987.

The domicile of the husband at the date of the commencement of the divorce proceedings and the recognition by the Irish courts of the divorce, became issues in proceedings brought by the wife against the husband in the High Court in 1986 claiming inter alia maintenance for herself and the two children of the marriage under s. 5 of the Family Law (Maintenance of Spouses and Children) Act, 1976. The High Court (Egan J.) had granted the wife interim maintenance before the English court had made absolute the decree nisi and had stated that the question of the recognition of any decree absolute was a matter that should be resolved at plenary hearing with oral evidence (see[1987] I.R. 152). The question of the recognition of the decree absolute was the subject matter of the instant case.

The parties agreed that if both were domiciled in England at the date of service of the originating petition, the divorce should be recognised and if the husband was domiciled in England on the date on which the divorce proceedings were instituted and if the divorce decree was within the ambit of the Act of 1986 then it was also entitled to recognition.

It was submitted on behalf of the wife that the implementation of the decision to purchase a house in Ireland and to set up a permanent home for the foreseeable future displaced the domicile of origin of both independently.

It was submitted on behalf of the husband that the implementation of this decision did not bring about any change in the domicile of the parties and that even if the husband was held to acquire a domicile of choice in Ireland in 1979, his conduct after the breakdown of the marriage established that he had resumed his domicile of origin prior to the date of his petition for divorce in England.

It was also submitted on behalf of the wife that the Act of 1986 contained an apparent transitory lacuna in that it opened the door to the recognition of a foreign divorce granted after the commencement of the Act but in proceedings instituted by a foreign domiciled husband prior to that date whereas a foreign divorce decree obtained by a wife in similar circumstances would not be recognised if her husband was domiciled in Ireland on the date the divorce proceedings were commenced.

Held by Barr J., 1, that the domicile of origin of a person continued until it was proved to have been intentionally and voluntarily abandoned and supplanted by another.

Dicta of Black J...