C. M. v T. M

• Jurisdiction: Ireland
• Judgment Date: 13 February 1987
• Date: 13 February 1987
• Docket Number: [1986 No. 500 Sp]
• Court: High Court

High Court

[1986 No. 500 Sp]

C.M. v. T.M.

C.M.

Plaintiff

and

T.M.

Defendant

Cases mentioned in this report:—

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

L.B. v. H.B. [1980] I.L.R.M. 257.

Husband and wife - Maintenance - Application by spouse - Meaning of "spouse" - Whether right of spouse to apply ceases after recognition of foreign divorce - Family Law (Maintenance of Spouses and Children) Act, 1976 (No. 11), s. 5.

Conflict of laws - Marriage - Dissolution - Recognition of foreign decree absolute - Domicile of husband - Domicile and Recognition of Foreign Divorces Act 1986 (No. 24) s. 5.

Motion on Notice.

Section 5, sub-s. 1 (a) of the Family Law (Maintenance of Spouses and Children) Act, 1976, provides:—

"Subject to subsection (4) of this section, where it appears to the Court, on application to it by a spouse, that the other spouse has failed to provide such maintenance for the applicant spouse and any dependant children of the family as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that the other spouse make to the applicant spouse periodical payments, for the support of the applicant spouse and of each of the dependant children of the family, for such period during the lifetime of the applicant spouse, of such amount and at such times, as the Court may consider proper."

Section 5, sub-s. 1 of the Domicile and Recognition of Foreign Divorces Act, 1986, provides:—

"For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled."

Section 5, sub-s. 3 of that Act provides:—

"A divorce granted in . . . England and Wales . . . shall be recognised if either spouse is domiciled in [that] jurisdiction."

The plaintiff's motion seeking, inter alia, interim maintenance and the defendant's motion for an order staying the plaintiff's proceedings were heard by the High Court (Egan J.) on the 30th January and 3rd February, 1987.

The plaintiff wife and defendant husband were married in London in 1975 when both were resident and domiciled in England. In 1979 they took up residence in Ireland. The marriage broke down in 1985 and the husband returned to England. On the 19th January, 1987, he obtained an English decree nisi on foot of his petition for divorce. A cross-petition for dissolution of the marriage by the wife was out of time and was disallowed. That refusal was not appealed by the wife who had, in June, 1986, commenced proceedings against her husband in the High Court claiming, inter alia maintenance for herself and for the two children of the marriage under s. 5 of the Family Law (Maintenance of Spouses and Children) Act, 1976.

At the hearing on the 30th January, 1987, of a motion by the plaintiff for interim maintenance the defendant sought to have the proceedings against him stayed on the ground that as an application would be made by him to have the decree nisi made absolute on the expiry of the minimum period of six weeks laid down by English law, and as this application would be unopposed, the plaintiff would by the 2nd March, 1987 have ceased to be a "spouse"within the meaning of the Act of 1976 for the purposes of applying for maintenance.

Held by Egan J., in refusing to stay the proceedings and in granting the plaintiff interim maintenance, that if an English court did make absolute the decree nisi and the decree absolute were recognised by the State, the plaintiff's claim for maintenance on her own behalf and that of the children would have to be dismissed. However, that did not preclude the Court from making an interim order as the plaintiff was currently a "spouse" within the meaning of the Act. Nor did it preclude an application for maintenance by the plaintiff on behalf of the children under s. 11 of the Guardianship of Infants Act, 1964.

Per Egan J. The question of the recognition by the State of any decree absolute between the parties depended in this case on the domicile of the husband. This was a matter too important to be decided on correspondence and affidavits and could only fairly be resolved at plenary hearing with oral evidence.

Cur. adv. vult.

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