Clancy v Min Social Welfare

• Jurisdiction: Ireland
• Judge: Mr. Justice Budd
• Judgment Date: 18 February 1994
• Neutral Citation: 1994 WJSC-HC 175
• Docket Number: No. 856 Sp./1991
• Court: High Court
• Date: 18 February 1994

1994 WJSC-HC 175

THE HIGH COURT

No. 856 Sp./1991

CLANCY v. MIN SOCIAL WELFARE

BETWEEN

CHRISTINA CLANCY

PLAINTIFF

AND

THE MINISTER FOR SOCIAL WELFARE

DEFENDANT

Citations:

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S299

RSC O.90

CONSTITUTION ART 41.3.4

CONSTITUTION ART 40.1

MAYO-PERROTT V MAYO-PERROTT 1958 IR 336

L V L 1978 IR 288

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S1

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5

M (C) V M (T) (NO 2) 1990 2 IR 52

WARRENDER V WARRENDER 2 CLARK & FIN 488

M (C) V M (T) 1991 ILRM 268

GAFFNEY V GAFFNEY 1975 IR 133

K D (ORSE C) V M C 1985 IR 697

T V T 1983 IR 29

BANK OF IRELAND V CAFFIN 1971 IR 123

M T T V N T T 1982 ILRM 217

C (K) V C (M) 1985 IR 697

M (C) V M (T) 1988 ILRM 456

ARMITAGE V AG 1966 P 135

ADAMS DECEASED , IN RE 1967 IR 424

C V C UNREP KENNY 27.7.73

N V N UNREP MACKENKIE 29.7.87 1988/6/1568

RUSSELL, IN RE 1901 AC 446

OFFENCES AGAINST THE PERSON ACT 1861 S57

R V FANNING (1865) 17 ICLR 289

WAYWODS PRACTICAL COMMENTARY ON THE CODE OF CANON LAW 523–525

PHIPSON ON EVIDENCE (1911) 5ED 320

HALSBURYS STATUTES (1987) V27 778

DOMICILE & MATRIMONIAL PROCEEDINGS ACT 1973 UK

W V W 1993 ILRM 294

LE MESURIER V LE MESURIER 1895 AC 517

SINCLAIRS DIVORCE BILL 1897 AC 469

SHAW V GOULD 1868 LR 3 HL 55

MCCOMISKEY, IN RE 1939 IR 573

CONSTITUTION ART 40.3

CONSTITUTION ART 41

SILLAR, RE: HURLEY V WIMBUSH 1956 IR 344

INDYKA V INDYKA 1969 AC 33

MURPHY V AG 1982 IR 241

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S298(6)

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S92

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S93

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S81(1)

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S86(1)

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 PART VIII

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S298(7)

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S298(8)

JOYCE, RE: CORBETT V FAGAN 1946 IR 277

MACCAULEY V MACCAULEY 1991 IFLR 235

MAINTENANCE ORDERS (RECIPROCAL ENFORCEMENT) ACT 1972 UK

MAINTENANCE ORDERS (REPUBLIC OF IRELAND) ORDER 1974 SI 2140/74 UK

CIVIL JURISDICTION & JUDGMENTS ACT 1982 UK

BRUSSELS CONVENTION 1968

BRUSSELS CONVENTION 1968 ART 27

HOFFMANN V KRIEG 1988 ECR 645

DOMESTIC PROCEEDINGS & MAGISTRATES COURTS ACT 1978 UK

MATRIMONIAL CAUSES ACT 1973 S27 UK

MAINTENANCE ORDERS (REPUBLIC OF IRELAND) ORDER 1974 SI 2140 S6(5) UK

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989

RYAN V AG 1965 IR 294

WHICKER V HUME 7 HL CAS 124

CAFFIN, IN RE 1971 IR 123

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5(1)

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5(7)

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5(3)

SINCLAIR V SINCLAIR 1896 1 IR 603

THIRD AMENDMENT TO THE CONSTITUTION ACT 1972

FOURTH AMENDMENT TO THE CONSTITUTION ACT 1972

FIFTH AMENDMENT TO THE CONSTITUTION ACT 1972

SIXTH AMENDMENT TO THE CONSTITUTION ACT 1979

SEVENTH AMENDMENT TO THE CONSTITUTION ACT 1979

EIGHTH AMENDMENT TO THE CONSTITUTION ACT 1983

NINTH AMENDMENT TO THE CONSTITUTION ACT 1984

TENTH AMENDMENT TO THE CONSTITUTION ACT 1987

CONSTITUTION SAORSTAT EIREANN ART 73

CONSTITUTION ART 50

BREEN V BREEN 1961 3 AER 225

SUCCESSION ACT 1965 S111

MARRIED WOMEN (MAINTENANCE IN CASE OF DESERTION) ACT 1886

BROMLEY FAMILY LAW 6ED 1981 243

HAGUE CONVENTION ON THE RECOGNITION OF DIVORCES & LEGAL SEPARATIONS 1.6.70

HARVEY V FARNIE 8 AC 43

PEMBERTON V HUGHES 1899 1 CH 781

BATER V BATER 1906 P 209

CONSTITUTION ART 41.3.3.

WICKER V HUME 28 LJ CH 396

UDNIY V UDNIY LR 1 HL (SC) 441

DAVIDSON V ANNESLEY 1926 CH 692

CASTRIQUE V IMRIE LR 4 HL 414

VANQUELIN V BOUARD 15 CB NS 341

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S2

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S3

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.4

SILLAR, IN RE 1956 IR 344

MATRIMONIAL CAUSES ACT 1973 UK

CONSTITUTION ART 41.3.2

B (L) V B (H) UNREP BARRINGTON 21.7.80

FAMILY HOME PROTECTION ACT 1976

WILSON V WILSON LR 2 P & D 435

BRUSSELS CONVENTION 1968 ART 27(3)

JOYCE, IN RE 1946 IR 277

LAW REFORM COMMISSION LRC 19 - 1985 REPORT ON PRIVATE INTERNATIONAL LAW ASPECTS OF CAPACITY TO MARRY & CHOICE OF LAW PROCEEDINGS FOR

NULLITY OF MARRIAGE

ANNESLEY, IN RE 1926 CH 692

MATRIMONIAL CAUSES ACT 1857 UK

TRAVERS V HOLLEY 1953 P 246

LAW REFORM COMMISSION LRC 10 - 1985 REPORT ON RECOGNITION OF FOREIGN DIVORCES & LEGAL SEPARATIONS

DICEY CONFLICT OF LAWS 7ED RULE 117 609

CONSTITUTION ART 41.1

CONSTITUTION ART 41.2

CONSTITUTION ART 41.3

CONSTITUTION ART 41

Synopsis:

MARRIAGE

Divorce

Foreign decree - Recognition - Test - Domicile - Common-law rule - Wife's domicile no longer dependent on that of husband - Recognition of foreign divorce conditional on one spouse being domiciled in country of divorce court - United Kingdom divorce obtained by Irish wife while husband domiciled in Ireland - Whether wife had acquired domicile of choice in United Kingdom - (1991/856 Sp - Budd J. - 18/2/94)

|Clancy v. Minister for Social Welfare|

DOMICILE

Test

Wife - Independence - Husband - Separation - Common law - Modification - Recognition of foreign divorce conditional on one spouse being domiciled in country of divorce court - United Kingdom divorce obtained by Irish wife while husband domiciled in Ireland - Whether wife had acquired domicile of choice in United Kingdom - (1991/856 Sp - Budd J. - 18/2/94)

|Clancy v. Minister for Social Welfare|

1 Judgment of Mr. Justice Budd delivered on the18th day of Feburary 1994.

2 By Special Summons issued on 19th October 1991 the Plaintiff appealed under the provisions of Section 299 of the Social Welfare (Consolidation) Act 1981 against the decision of a Social Welfare Appeals Officer acting as agent for the Defendant against a decision dated 14th October 1991 that the Plaintiff is not entitled to receive a widow's pension on the grounds that she was not the legal wife of the late Martin Clancy. The Plaintiff had married the late Martin Clancy ("the husband") in a Blackpool Registry Office on 20th September 1985. The husband died on 30th August 1990 leaving the Plaintiff, whom I shall refer to as "the widow", (since this is how she would be regarded by the community in which she lived with the husband), and their son Edward born on 8th April 1980 and their daughter Laura born on 6th August 1982. The husband had previously been married to Mary Anna Doherty (whom I shall refer to as "the first Mrs. Clancy") on 31st July 1976 in St. Mary's Roman Catholic Church, Clonmany in County Donegal. For some time after this marriage the husband and the first Mrs. Clancy lived together in Dublin and there was one child of this marriage, namely, Morgan who was born on 6th August, 1978. There were unhappy differences between the couple and, shortly after the birth of the child, in September 1978 the couple separated finally, there having been previous intermittent separations. The son resided with the first Mrs. Clancy who formed a relationship with another man by whom she had a child in December 1980. The widow has deposed that she is aware of these family matters from her late husband and that she also met the first wife on two occasions. She believes that in or about 1983 the first wife moved with her new family to Blackpool in England. A petition for divorce dated 19th December 1984 was apparently served on the husband and in her affidavit sworn on 19th March 1985 for the purpose of her petition in the Blackpool County Court, the first wife referred to an acknowledgement of service received from her Respondent spouse; this acknowledgement is dated 14th January 1985 and is signed by Martin Clancy of No. 186 Oliver Bond Flats, Dublin; in answer to the question - 'On what date and at what address did you receive it?' he has written:- 'on the 14.1.85' and his signature on the document is identified by the first wife in her affidavit sworn on 19th March 1985. I accept that the petition was served on the husband on 14th January 1985. It seems to me from the judgment of Mr. Justice Henchy in the Supreme Court in T. -v- T 1983 IR 29 at page 33 that the time of the service of the divorce petition is the relevant time in respect of a decision as to the domicile of one or both of the parties involved in the divorce petition.

3 The decree absolute of dissolution of the marriage between the husband and the first wife was granted by Blackpool County Court on 30th July 1985. In September 1985 the first wife married her second husband. It is the widow's belief, according to her affidavit sworn on 5th December 1991, that from the time the first wife left Ireland and went to live in England that she has resided in England, firstly, in the Blackpool area and latterly in the London area with her second husband and the child of her earlier marriage and the child of her second marriage and that she appears to have formed an intention when she first went there not to return to this country. Since the widow met the first wife on two occasions when taking holidays in Blackpool, I infer from her affidavit that she was given to believe that the first wife and her second husband intended to reside and work permanently in England. This belief would derive support from the first wife's affidavit sworn in Blackpool on 19th March 1985 verifying the answers to questions in the petition. At that time she gave her address as 16 Grantham Road, Blackpool, Lancashire and her occupation as a waitress. In the petition dated 19th March 1984 she verified that she, the Petitioner, was domiciled in England and Wales and that she was then residing at 60 Springfield Road, Blackpool. In the affidavit by the Petitioner in support of the petition she indicated that she had now moved to 16 Grantham Road, Blackpool from 60 Springfield Road, Blackpool where she had resided from August 1978 to Christmas 1984 and that she had been residing at 16 Grantham Road from Christmas 1984...