CK v JK and FMcG and Attorney General (notice parties)
| Jurisdiction | Ireland |
| Court | Supreme Court |
| Judge | Denham J.,Murray J.,Mrs Justice McGuinness,FENNELLY J. |
| Judgment Date | 31 March 2004 |
| Neutral Citation | [2004] IESC 21 |
| 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.
AND
AND
Citations:
COURTS OF JUSTICE ACT 1947 S16
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 355 2003 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 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
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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
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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
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F V F 1995 2 IR 354
DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5
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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.
31st day of March,2004by Denham J.
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.
The facts, as proved or admitted or agreed and as found by the Circuit Court, were as follows:
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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."
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...
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