Chaudhry -v- an tÁrd-Chláraitheoir
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2015] IEHC 522 |
| Docket Number | [2014 No. 589 J.R.] |
| Court | High Court |
| Date | 31 July 2015 |
[2015] IEHC 522
[2014 No. 589 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Family – S. 8 of the Civil Registration Act 2004 – Registration of divorce decree – Council Regulation (EC) 2201/2003 – Judgment in default – Unlawful discrimination
Facts: The applicant sought an order of certiorari for quashing the decision of the respondent refusing to recognise the applicant's Lithuania divorce decree. The respondent contended that in the absence of any proof, the divorce obtained by means of substituted services by way of a public notice on the Lithuanian Court's website in default of appearance of the other party, whose address was unknown to the applicant, the divorce was not recognisable in the Jurisdiction of Ireland. The applicant alleged that the respondent's claim that the applicant was required to apply for the declaration from the Court that his Lithuanian divorce might be recognized in the state of Ireland, was discriminatory and contrary to the Council Regulation (EC) 2201/2003.
Mr. Justice Hedigan refused to grant an order of certiorari to the applicant. The Court held that the failure of the applicant to submit proof of publication of substituted service on the website of the Lithuanian Court was contrary to art. 22 (b) of Council Regulation (EC) 2201/2003. The Court suggested that the appropriate remedy for the applicant was to submit the proof of acceptance of divorce by the other party or in the alternative, apply under s. 29 of the Family Law Act 1995 seeking recognition of his divorce in Ireland. The Court held that the primary onus rested upon the applicant to furnish proof that his divorce was properly obtained and capable of being recognised.
The applicant herein appeals a decision of the respondent allegedly made on 27th August, 2014, refusing to recognise the applicant's decree of divorce given in accordance with Lithuanian law on 27th December, 2013. By order of 16th October, 2014, Peart J. granted leave to the applicants to apply for judicial review for the following reliefs:
‘(1) An order of certiorari quashing the decision of the respondent as notified by letter dated 27th August 2014 refusing to recognise the applicant's Lithuanian divorce decree which was granted on 27th December 2013.
(2) Such further or other Order as to this Honourable Court shall seem met.
(3) An Order providing for Costs.’
The applicant is a Pakistani citizen who alleges that his marriage to a Lithuanian woman was dissolved by a decree of divorce on 27th December, 2013, in Lithuania.
The respondent is responsible for managing and controlling the system of registration in Ireland. The respondent's principal functions are set out under s. 8 of the Civil Registration Act 2004 (‘the Act of 2004’) and include the maintenance of a system of registration in respect of, inter alia, births and marriages.
The applicant entered the State in January 2005 under a student visa and his entitlement to remain in the State as a student was renewed at various times.
On 7th April, 2006, the applicant married a woman named R.B., a Lithuanian national. The relationship appears to have broken down a year later in May 2007. In or around June 2011, the applicant met J.S., a Romanian national, and a relationship developed and they began co-habiting together. At para. 8 of his grounding affidavit, sworn on 8th October, 2014, the applicant averred that it was as a result of this relationship that he decided to obtain a divorce from R.B. He further averred that he believed that R.B. had returned to Lithuania and thus decided to institute divorce proceedings there. Sometime after this, the relationship with J.S. broke down.
Divorce proceedings issued in 2013 against R.B. in the Alytus Regional District Court, Lithuania. The applicant did not have an address for R.B.. The first order of the Alytus Region District Court in Lithuania, dated 22nd October, 2013, permitted substituted service of the applicant's intention to pursue a divorce from R.B. by way of public notice on the Lithuanian Courts' website. The Order stated, inter alia:-
‘The process has not been served on the Defendant [R.B.], because her place of residence of existence is unknown. In accordance with the Residents' Register, the Defendant has declared her place of residence in Alytus District Municipality; in accordance with the data of Sodra, the Defendant does not work anywhere.
The Plaintiff and the Court took all accessible measures to learn the address; however, the place of residence or the workplace of the Defendant are unknown. In order to perform the urgent procedural actions, the Plaintiff asks to serve the process on the Defendant by way of public announcement.
The request is to be satisfied (Article 130 of the Code of Civil Procedure), because the place of residence and the workplace of the Defendant are unknown, and the Plaintiff asks to serve the process on the Defendant by way of public announcement.
The Court, following Article 130, Articles 290-291 of the Code of Civil Procedure of the Republic of Lithuania, does hereby order:
to serve the process by way of public announcement, by announcing the notice of the following content on the special website www.teismai.lt on 22/10/2013…’.
The Residents' Register, referred to in the Order, stated under the heading ‘Last Place of Residence’ that ‘[o]n 02/09/2009, included in the Register of the Persons Having no Place of Residence, Alytus District Municipality.’
The matter was then adjourned to 11th November, 2013, when a further order issued notifying R.B. of the place, date and time of the preliminary court hearing on 5th December, 2013, of the applicant's claim and summoning her to attend, which order was again served by way of substituted service on the designated website in accordance with Lithuanian law. No appearance was made by R.B. at the preliminary hearing. A decree of divorce was granted by the Alytus Region District Court pursuant to a judgment issued on 27th December, 2013. The judgment noted that an appeal could be brought within 30 days to the Kaunas Regional Court.
Around the time of the divorce proceedings, the applicant began a relationship with a Lithuanian national, A.G. In or around February 2014, the applicant and A.G. made an application to the registry office seeking leave to marry. Shortly after, their relationship ended.
Following the finalisation of his divorce in the Lithuanian court and the end of his relationship with A.G., the applicant became engaged to marry J.S. in or about 12th April, 2014. The applicant made an appointment with the registry office in Roscommon on 5th June, 2014, in order to give notice of their intention to marry in accordance with the Act of 2004. By letter dated 5th June, 2014, Ms. Lally of the Civil Registration Office, Roscommon requested the applicants to complete an Annex 1 Form re Foreign Divorce(s) comprising the ‘Certificate Referred to in Article 39 Concerning Judgments in Matrimonial Matters’. This was completed by the Alytus Region District Court on 23rd June, 2014. The completed certificate was sent by the applicant to Ms. Lally.
A letter dated 27th August, 2014, from Ms. Anne Boyle, General Register Office, Roscommon, to Ms. Lally, stated the following:-
‘In order for this Office to authorise the marriage to proceed, we must be satisfied that the divorce granted by the Alytus Regional District Court on 28th January 2014 is entitled to recognition under Irish law.
The relevant legislation in relation to this matter is Council Regulation (EC) 2201/2003…
In this case, it appears that the judgement was given in default of appearance of the Defendant and the above court indicated by way of an Order that the “process has not been served on the Defendant Ms R.B., because her place of residence of residence of existence or her workplace is unknown”. It would appear that the claim and appendices were served on the Defendant by way of public announcement only. This Office is regrettably not in a position to recognise this divorce, in view of the position set out above.
If evidence can be obtained indicating that Ms R.B. accepts the divorce judgement unequivocally, the matter will be further reviewed.
In the meantime the marriage may not proceed in this State until this matter is resolved.’
No reply was received from the applicant in response to the letter and he thereafter issued the within application.
Section 46 of the Act of 2004 sets out the procedures to be followed in respect of the notification of marriage. Section 46(1) provides:-
‘46.—(1) A marriage solemnised in the State, after the commencement of this section, between persons of any age shall not be valid in law unless the persons concerned—
(a) (i) notify any registrar in writing in a form for the time being standing approved by an tArd-Chláraitheoir of their intention to marry not less than 3 months prior to the date on which the marriage is to be solemnised, or
(ii) are granted an exemption from the application of subparagraph (i) under section 47 and give a copy of the court order granting the exemption to any registrar before the date aforesaid,
and
(b) attend at the office of that registrar, or at any other convenient place specified by that registrar, at any time during normal business hours not less than 5 days (or such lesser number of days as may be determined by that registrar) before the date aforesaid and make and sign a declaration in his or her presence that there is no impediment to the said marriage.’
Section 2(2)(b) of the Act of 2004 sets out the definition of an ‘impediment to marriage’, which includes, ...
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