CK v JK and FMcG and Attorney General (notice parties)

• Jurisdiction: Ireland
• Judge: Denham J.,Murray J.,Mrs Justice McGuinness,FENNELLY J.
• Judgment Date: 31 March 2004
• Neutral Citation: [2004] IESC 21
• Court: Supreme Court
• Docket Number: [S.C. No. 100 of 2003]
• Date: 31 March 2004

[2004] IESC 21

THE SUPREME COURT

Denham J.

Murray J.

McGuinness J.

Fennelly J.

McCracken J.

NO. 100/2003

K (C) v. K (J) & McG (F)

IN THE MATTER OF JUDICIAL SEPARATION

AND FAMILY LAW REFORM ACT, 1989,

IN THE MATTER OF THE FAMILY LAW ACT, 1995

AND IN THE MATTER OF SECTION 16 OF THE

COURTS OF JUSTICE ACT, 1947

BETWEEN/

C.K.

APPLICANT

AND

J.K.

RESPONDENT

AND

F.McG.

NOTICE PARTY

Citations:

COURTS OF JUSTICE ACT 1947 S16

RSC O.65

GAFFNEY V GAFFNEY 1975 IR 133

BONAPARTE V BONAPARTE 1892 P 402

SHAW V GOULD 1868 LR 3 HL 55

MIDDLETON V MIDDLETON 1996 2 WLR 512

S (A) (ORSE) B (A) 2002 2 IR 428 2001/21/5790

K (P) (ORSE) (C) V K (T) 2002 2 IR 186 2002/14/3339

FAMILY LAW ACT 1995 S29

MCG V W (D) (NO 2) 2000 4 IR 1

DOWNTON V ROYAL TRUST ET AL 1972 34 DLR (3D) 403

QUINN, STATE V RYAN 1965 IR 70

MOGUL OF IRELAND V TIPPERARY (NR) CO COUNCIL 1976 IR 260

AG V RYAN'S CAR HIRE LTD 1965 IR 642, 101 ILTR 57

SMITH V CAVAN & MONAGHAN CO COUNCIL 1949 IR 322

IN THE MATTER OF ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360

MAINE ANCIENT LAW 10ED 23

G V M 1885 10 AC 186

HARRIMAN V HARRIMAN 1909 P 123 78 LJP 6 100 LT 557 73 JP 193

SCHWEBEL V SCHWEBEL 1970 10 DLR 3D 742 1970 2 OR 354

JUDICIAL SEPARARATION & FAMILY LAW REFORM ACT 1989 S8

FAMILY HOME PROTECTION ACT 1976

CONSTITUTION ART 41.3.1

T V T 2002 3 IR 3552003 1 ILRM 321 2002/26/6842

CONSTITUTION ART 41.3.3

MESKELL V CIE 1973 IR 121

BYRNE V IRELAND 1972 IR 241

EDUCATIONAL CO OF IRELAND LTD V FITZPATRICK (NO 2) 1961 IR 345

MCDONNELL V IRELAND 1998 1 IR 134

CONSTITUTION ART 40.3

LAW REFORM COMMISSION REPORT ON THE LAWS OF NULLITY

MCMAHON & BINCHY LAW OF TORTS 3ED

FORSHALL V WALSH UNREP SHANLEY 18.6.1997 1998/6/1685

MELUISH V MELTON 1876 3 CH 27

CLERK & LINDSELL ON TORTS 13ED

BEAULNE V RICKETTS 1979 96 DLR 3D 550

GRAHAM V SAVILLE 1945 2 DLR 489

STATUTE OF LIMITATIONS ACT 1957

FAMILY LAW ACT 1995 S29(1)

FAMILY LAW ACT 1995 S29(4)

W V W 1993 2 IR 476

MAYER V MAYER 1995 66 NC APP 522

FAMILY LAW (DIVORCE) ACT 1996

FAMILY LAW ACT 1995 S29

FAMILY LAW ACT 1995 S29(8)

O'BRIEN V MILLER GROUP NEWSPAPERS LTD 2001 1 IR 1

H (D) V GROARKE 2002 3 IR 522 2002/12/2955

DICEY & MORRIS THE CONFLICTS OF LAW 13ED 762

CONSTITUTION ART 41

DERRY V PEEK 1889 14 AC 337

FORSHALL V WALSH UNREP SHANLEY 18.6.1997 1998/6/1685

SHAW V SHAW 1954 AB 429

OFFENCES AGAINST THE PERSON ACT 1861 S57

RUSSELL, IN RE 1901 AC 446

R V WHEAT 1921 2 KB 119

MEGARRY A SECOND JUSTICE MISCELLANY 1973 211

DUNCAN 1974 9 IR JUR (NS) 59

C V C UNREP KENNY 27.7.1973

PLUMMER, RE 1942 1 DLR 34

BINCHY CONFLICTS OF LAW

KRAUSE V KRAUSE 282 NY 355

MAYER V MAYER 66 NC APP 522

NEWFOUNDLAND FAMILY RELIEF ACT 1962 (CA)

CIVIL REGISTRATION ACT 2004

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 31(4)

FAMILY LAW (DIVORCE) ACT 1996 S39

FAMILY LAW ACT 1995 39

T (D) V L (E) 2002 2 ILRM 152

EEC REG 1347/2000

SHATTER THE APPLICATION OF CHAOS THEORY

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2

FISHCHER V FISCHER 254 NY 463

JOHNSON V JOHNSON 205 NY 561

SPENCER BOWER & TURNER LAW RELATING TO ESTOPPEL 3ED 16

CLIBBERY V ALLAN & ANOR 2002 FAMILY 261

S (A) (ORSE) B (A) 2002 2 IR 428 2001/21/5790

MOGUL OF IRELAND V TIPPERARY (NR) CO COUNCIL 1976 IR 260

TRAVERS V HOLLEY 1953 P 246

F V F 1995 2 IR 354

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5(5)

W V W 1993 2 IR 476

BATTER V BATTER 1906 P 209

AMPTHILL PEERAGE, RE 1977 AC 547

SCOTT V SCOTT 1913 AC 417

FAMILY LAW ACT 1995 S29(8)

Synopsis:

- [2004] 1 IR 224 - [2004] 2 ILRM 168

The applicant and the respondent were married at the Registry Office in Dublin in 1983. The relationship broke down and in 2001 the applicant issued a civil bill in the Circuit Court seeking judicial separation. The respondent sought a declaration in his counterclaim that he had been previously married and that a divorce obtained by him in the USA was not entitled to recognition in the State and therefore that the purported ceremony of marriage entered into between himself and the applicant was null and void. The status of the respondent determined whether the Court had jurisdiction to entertain the application seeking a decree of judicial separation. This was a consultative case stated from the Circuit Court referring a question of law to the Supreme Court. The opinion of the Supreme Court was sought on whether the Circuit Court was entitled to hold as a matter of law, having regard to the findings of fact made by the Circuit Court, that the respondent was estopped from denying that he was married to the applicant.

Held by the Supreme Court in answering the question posed in the negative that the doctrine of estoppel could not be used to change a person's status when that had not occurred. The applicant could not evade the reality of the situation and the respondent could not be estopped from bringing forth evidence as to the status of his divorce in Ohio.

Reporter: R.W.

1 31st day of March,2004by Denham J.

Denham J.

1. A Question of Law

2 This is a consultative case stated from His Honour Judge Patrick McCartan, Judge of the Circuit Court assigned to the Dublin Circuit, pursuant to s. 16 of the Courts of Justice Act, 1947and Order 65 of the Rules of the Circuit Court 2001, on the application of C.K., the applicant, referring a question of law to the Supreme Court. The matter came before the Circuit Court on 22 ^ndd day of January, 2003 by way of a preliminary issue in proceedings brought by C.K., the applicant, seeking a decree of judicial separation with ancillary reliefs.J.K., the respondent, has filed a defence and counterclaim in which he seeks a declaration of nullity due to incapacity on his part because of his prior valid marriage to F.McG., the notice party.

2. Facts

3 The facts, as proved or admitted or agreed and as found by the Circuit Court, were as follows:

4 a "(a) The respondent married for the first time on the7 ^th September, 1968 to F.McG. There was one child of the marriage who was born on the 29 ^th May, 1969. In or about 1972 the marriage having failed, the respondent moved to live in a flat in Ranelagh. Ms. McG., a school teacher by profession in a provincial town does not appear to have looked to the respondent for maintenance and to have survived by her own means after the parting.

5 (b) In 1979 the respondent met the applicant in Dublin for the first time and they started to date. Shortly after their meeting the respondent moved to work in the same company as the applicant on the north side of the city. His work there involved him being trained in the manufacture of ... and for these purposes he was sent on training courses to the company's parent outlet in the State of Ohio inAmerica.

6 (c) There, the respondent met socially with an attorney a certain Mr.James McCorkle who on learning of the respondent's status and desire to be divorced, assured him that he could secure such a divorce for him without any difficulty and despite the absence of the necessary legal requirements of residency and other matters. Documents were prepared based on incorrect information relating to an address of residence and time spent in Franklin County and the State of Ohio. The respondent travelled to Ohio to attend the hearing of the application and the divorce was secured as easily as Mr. McCorkle promised.

7 (d) During all this time the applicant and the respondent were courting and working together. The notice party indicated at the hearing that she had received notification of the lodging of the application for the divorce in Ohio in the month of November, 1981 and decided to ignore it as affairs with the respondent had long been settled. She then got notice in the month of March, 1982 of the making of the order for divorce and was amused by the reference to child support which she confidently and correctly anticipated would amount to nothing inreality.

8 (e) The respondent took two training trips to Ohio, each lasting three to four weeks at most, both in 1981 in the months of May and November, staying in each occasion in a local commercial hotel. He then returned in March, 1982 for the final hearing of the application and the granting of the divorce.

9 (f) The question of marriage between the applicant and the respondent arose and the respondent was seeking a means of clearing the way for the union. The applicant was not involved directly in the attempts by the respondent to clear the way for their marriage. The applicant had sought the divorce document and on its reading it seemed to her that a judge of capable authority,who had the attendance of the respondent in court and was satisfied of all legal requirements, had granted the divorce sought.

10 (g) The couple proceeded to be married at the registry office in Dublin on the 25 ^th March, 1983. The application to the registrar in Dublin was on the basis that the respondent was a bachelor. The marriage was solemnised and no impediment or reservation arose during the notice application or the marriage ceremony.

11 (h) Having married in March, 1983 the couple stayed together as husband and wife for close on seventeen years during which time they had two daughters born on the 24 ^th day of April, 1987 and the13 ^th day of April, 1991. A family home was purchased in joint names at ... in the county of Dublin and the parties continued to reside there with the two children pending the determination of theseproceedings."

3. Consultative Case Stated

12 A written judgment was delivered by the Circuit Court on the29 ^th January, 2003. At paragraph 7 of the consultative case stated the findings of the Circuit Court are set out as follows:

"I have found that in this case, given the particular facts of the case, justice can only be achieved by the use of estoppel whereby the respondent would not be allowed...