Cohane v Cohane

• Jurisdiction: Ireland
• Judgment Date: 18 July 1968
• Date: 18 July 1968
• Docket Number: [1965. No. 343 P.]
• Court: Supreme Court

(S.C.)

Cohane

and

Cohane

Discretion of the Court -Husband and wife - Separation agreement -Rules of the Superior Courts, 1962, O. 29, r. 3.

The plaintiff had married her husband, the defendant, in the United States of America. In the year 1957 the parties had separated and had then executed a separation agreement which provided that it should be interpreted in accordance with the laws of the State of New York. Subsequently the plaintiff obtained in Mexico a decree of divorce which approved and incorporated the agreement. The defendant, who had re-married and was living in Ireland, was in breach of the agreement because he had failed to pay certain sums of money to the plaintiff for her maintenance. The plaintiff, who resided in Spain, brought an action in Ireland in which she claimed payment of the moneys which the defendant had failed to pay on foot of the agreement. The defendant applied to the High Court, by motion on notice, for an order directing the plaintiff to furnish security for the defendant's costs of the action on the grounds that the plaintiff resided outside the jurisdiction of the Court and that the defendant had filed a satisfactory affidavit showing that he had a defence on the merits, which proofs were required by the Rules of Court. Held by the Supreme Court ( Ó Dálaigh C.J., Haugh, Walsh, Budd and FitzGerald JJ.), in allowing the appeal, 1, that the defendant would normally have been entitled prima facie to the order sought by him as he had satisfied the requirements of the Rules of Court, and that a defence "on the merits" could include an objection to the enforcement of the agreement which was based upon a point of law of some...