F. v F. (Judicial Separation)

• Jurisdiction: Ireland
• Judgment Date: 30 November 1995
• Date: 30 November 1995
• Docket Number: [S.C. No. 377 of 1993]
• Court: Supreme Court

F. v. F. (Judicial Separation)

In the matter of the Judicial Separation and Family Law Reform Act, 1989, and in the matter of a consultative case stated pursuant to s. 16 of the Courts of Justice Act, 1947: F.

Applicant

and

F.

Respondent

[S.C. No. 377 of 1993]

Supreme Court

Family law - Judicial separation - Res judicata - Whether ruled settlement of earlier proceedings for divorce a mensa et thoro a bar to institution of later proceedings for order of judicial separation - Consultative case stated - Courts of Justice Act, 1947 (No. 20), s. 16 - Family Law (Maintenance of Spouses and Children) Act, 1976 (No. 11), ss. 5 and 27 - Family Law (Protection of Spouses and Children) Act, 1981 (No. 21), s. 2 - Judicial Separation and Family Law Reform Act, 1989 (No. 6), s. 2, sub-s. 1 (f), s. 8, sub-ss. 1 and 2, ss. 9, 37, and 43.

Practice and procedure - Res judicata - Abuse of process - Family law - Earlier proceedings for divorce a mensa et thoro followed by proceedings for order of judicial separation - Whether application barred by compromise of earlier proceedings.

The applicant instituted Circuit Court proceedings against the respondent in 1986 seeking a divorce a mensa et thoro and a barring order under s. 2 of the Family Law (Protection of Spouses and Children) Act, 1981. On the 2nd June, 1987, by consent of the parties, the proceedings were settled and stayed with liberty to apply to the court. It was agreed, inter alia, that the respondent would remain away from the family residence and that both parties would not molest or interfere with each other. The court made an order of the same date in the following terms:—

"The Court doth order on consent:

1. That all proceedings be stayed on the terms of the said consent.

2. Liberty to apply."

In 1992 the applicant purported to institute new proceedings against the respondent seeking a judicial separation under s. 2, sub-s. 1 (f) of the Judicial Separation and Family Law Reform Act, 1989 ("the Act of 1989"), and ancillary relief under s. 3, namely, a permanent exclusion order, a property adjustment order, and an order extinguishing the succession rights of the respondent to the applicant's estate. The respondent objected in point of law to the applicant's claim by reason of the existence of the earlier consent and court order of 1987. The Circuit Court Judge referred the following question to the Supreme Court, by way of consultative case stated, pursuant to s. 16 of the Courts of Justice Act, 1947:—

"Is the applicant entitled to effectively disregard the earlier proceedings and liberty to apply therein and bring the second set of proceedings seeking the relief claimed?"

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Egan, Blayney and Denham JJ; Hamilton C.J. dissenting), in answering the question in the negative, 1, that the earlier proceedings for a divorce a mensa et thoro precluded the institution of separate proceedings for judicial separation under the Act of 1989, given that both causes of action were the same in all but name, and that the issue of marital cohabitation had been resolved in the earlier proceedings in accordance with the terms of consent agreed between the parties and relied upon by the court.

Courtney v. Courtney [1923] 2 I.R. 31 and K v. K.[1988] I.R. 161 applied. D. v. D. (Unreported, Supreme Court, 8th May, 1978) distinguished.

Per curiam: The actions of divorce a mensa et thoro and of judicial separation both concern the reciprocal marital right and duty of cohabitation; neither action alters the status of the married couple.

2. (Hamilton C.J. dissenting): That the Court would not support a form of proceeding where the primary relief was being pursued simply as a means towards obtaining the benefit of ancillary relief.

3. (Hamilton C.J. dissenting): That the respondent should not be obliged to face a second action which sought exactly the same relief as the first, albeit under a different name.

Cases referred to in this report:—

Courtney v. Courtney [1923] 2 I.R. 31; (1923) 57 I.L.T.R. 42.

D. v. D. (Unreported, High Court, Doyle J., 21st July, 1977); (Unreported, Supreme Court, 8th May, 1978).

Green v. Rozen [1955] 1 W.L.R. 741; [1955] 2 All E.R. 797.

K v. K. [1988] I.R. 161.

In re McLoughlin's Application [1963] I.R. 465.

N. (Otherwise K.) v. K. [1985] I.R. 733; [1986] I.L.R.M. 75.

Consultative case stated.

The facts have been summarised in the headnote and are fully set out in the judgments of Blayney and Denham JJ. infra.

The original matrimonial Civil Bill in respect of which the present proceedings arose was dated the 29th October, 1986. The relief therein sought was a divorce a mensa et thoro, an exclusion order and alimony. Further, a barring order was sought under s. 2 of the Family Law (Protection of Spouses and Children) Act, 1981. Both matters were settled and stayed by consent of the parties on the 2nd June, 1987. The court made an appropriate order on the same day.

By application dated the 20th February, 1992, the applicant applied to the Circuit Court to have the consent of 1987 converted into a judicial separation under s. 2, sub-s. 1 (f) of the Judicial Separation and Family Law Reform Act, 1989. Other relief, namely, a permanent exclusion order and extinguishment of succession rights was sought under s. 3 of the Act of 1989. The respondent filed an answer on the 14th July, 1992. The hearing was held on the 27th January, 1993.

The application was heard by the Circuit Court sitting in Cork on the 27th January, 1993, and at the request of the applicant, the Circuit Court Judge stated a consultative case to the Supreme Court on the 2nd December, 1993. The case stated was heard by the Supreme Court (Hamilton C.J., Blayney, Denham, Egan and O'Flaherty JJ.) on the 31st October, 1995.

Cur. adv. vult.

Hamilton C.J.

In pursuance of the provisions of s. 16 of the Courts of Justice Act, 1947, the learned judge of the Circuit Court of, and for the county and county borough of Cork, by case stated and signed on the 2nd December, 1993, referred a question of law, arising in a matter before him, for the determination of the Supreme Court.

I have determined that the question referred by the learned Circuit Court judge should be answered in the affirmative.

As my view in this regard is not shared by any of the other members of the Court and as the sole purpose of a case stated pursuant to the provisions of s. 16 of the Act of 1947 is to have determined by the Supreme Court the point of law referred to it by the learned Circuit Court judge, I do not propose to state my reasons for so determining as no useful purpose would be served by my so doing as the point of law will be determined by the judgments of my colleagues.

O'Flaherty J.

I agree with the judgments of Blayney and Denham JJ.

Egan J.

I agree with the judgment of Blayney J.

Blayney J.

This is a consultative case stated for the opinion of the Court by His Honour Judge Anthony Murphy, the Circuit Court Judge of the Cork circuit, pursuant to s. 16 of the Courts of Justice Act, 1947, in a proceeding in which the parties are a married couple.

The facts set out in the case stated may be summarised as follows. By a matrimonial civil bill dated the 29th October, 1986, the applicant sought a decree of divorce a mensa et thoro; an order excluding the respondent from the family home and payment of alimony. In his defence the respondent denied that the applicant was entitled to the relief claimed.

By an application also dated the 29th October, 1986, the applicant applied for a barring order against the respondent pursuant to s. 2 of the Family Law (Protection of Spouses and Children) Act, 1981. The respondent filed an answer denying the applicant's entitlement to the relief claimed.

By a consent in writing made between the parties on the 2nd June, 1987, it was agreed:—

• 1. That the respondent would pay to the applicant the sum of £60.00 per week for the support of the applicant and two dependant children.

• 2. That the applicant should have sole right of residence in the family home premises in the city of Cork, the respondent undertaking to remain away from the said premises.

• 3. The applicant to have custody of the infant children subject to the respondent having reasonable access.

• 4. The consent was not to prejudice any rights which the parties might respectively have in relation to the ownership of the family home premises.

• 5. Liberty to apply was reserved.

By order of the Circuit Court made on the 2nd June, 1987, in the matter of the Family Home (Protection of Spouses and Children) Act, 1981, it was ordered that the proceedings be stayed on the terms of the said consent and there was...