O' G (M) v O'G

• Jurisdiction: Ireland
• Judge: Mr. Justice Lavan
• Judgment Date: 16 May 1996
• Neutral Citation: 1996 WJSC-HC 4305
• Court: High Court
• Date: 16 May 1996

1996 WJSC-HC 4305

THE HIGH COURT

O' G (M) v. O'G

ON CIRCUIT

IN THE MATTER OF

THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989

BETWEEN

M. O'G.

APPLICANT

AND

R. O'G.

RESPONDENT

Citations:

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989

W V W 1993 2 IR 476

T V T 1982 ILRM 217

CLANCY V MIN FOR SOCIAL WELFARE UNREP BUDD 1994/17/263

JOYCE, RE: CORBETT V FAGAN 1946 IR 277

UDNEY V UDNEY LR 1 HL 350

M (C) V M (T) 1990 2 IR 59

T V T 1983 IR 34

M (C) V M (T) 1988 ILRM 457

K (A) V K (J) UNREP MCGUINNESS 28.7.95

INDYKA V INDYKA 1969 AC 33

SILLAR, RE: HURLEY V WINBUSH 1956 IR 344

DOMICILE & MATRIMONIAL PROCEEDINGS ACT 1973

MATRIMONIAL CAUSES ACT 1973 S1(2)(e)

Synopsis:

DOMICILE

Test

Wife - Petition - Divorce - Recognition - Foreign decree - Petitioner's declaration when filing petition not conclusive evidence of domicile - Applicant wife sought maintenance relief - Respondent's failure to establish that applicant abandoned her domicile of origin - Divorce not recognised by court - (Lavan J. - 16/5/96)

|O'G. v. O'G.|

EVIDENCE

Quantum

Declaration - Divorce - Wife - Domicile - Foreign decree - Petitioner's declaration when filing petition not conclusive evidence of domicile - Applicant wife sought maintenance relief - Respondent's failure to establish that applicant abandoned her domicile of origin - Divorce not recognised by court - (Lavan J. - 16/5/96)

|O'G. v. O'G.|

MARRIAGE

Divorce

Foreign decree - Recognition - Test - Domicile - Pre-1986 divorce - Recognition dependent upon one spouse being domiciled in country of divorce court - Pro-forma declaration of petitioner not conclusive evidence of domicile in United Kingdom - Reconciliation and cohabitation after divorce - Subsequent separation - Maintenance and other relief sought by applicant as wife despite divorce on her petition - Applicant's declaration at time of petition not conclusive of domicile at that time - Respondent's failure to prove that applicant had acquired a domicile of choice when petition filed - Applicant entitled to apply for relief as wife of respondent - (Lavan J. - 16/5/96)

|O'G. v. O'G.|

1 Judgment delivered by the Honourable Mr. Justice Lavan the 16th day of May 1996

2 The Applicant, M. O'G., applied to the Circuit Family Court sitting at Boyle in the County of Roscommon on the Midland Circuit in January 1995 for reliefs pursuant to the provisions of the Judicial Separation and Family Law Reform Act, 1989.

3 At the hearing before the Circuit Court Judge on the 20th March, 1995 the husband/Respondent raised a preliminary issue in relation to a divorce obtained by the Applicant in the Courts of England and Wales. Counsel for both parties agreed the facts and the legal principles to be applied thereto. These are fully set out in the document filed in Court together with the written submissions. All three documents are taken as forming part of this judgment.

4 The Circuit Court Judge held in favour of the husband/Respondent. The wife appealed to the High Court sitting on Circuit. I heard evidence in Roscommon during the October 1995 sitting and transferred the case to Dublin for further evidence and submissions. These I heard on the 21st December, 1995.

AGREED FACTS

5 On 25th November, 1967 the parties hereto were married. There were three children of the union, namely, Teresa, born on the 1st day of October 1970, John, born on the 12th day of July 1979 and Roger, born on the 20th day of August 1983. After their marriage, the parties resided with the Respondent's parents but moved to England in 1968 where they resided and rented accommodation. Their reason for moving was the unsuitability of the accommodation in Ireland and for employment. When they went to England, the Applicant worked in a factory and the Respondent worked on the buildings. The Respondent's parents signed over the home and lands to the Respondent and the Applicant will allege that it was the intention of the Applicant and the Respondent to make sufficient monies in England to return and carry out substantial improvements to the said house.

6 In 1974, unhappy differences having occurred between the parties, the Applicant vacated the family home and bought a house for £4,000 paying a deposit of £1,000 and borrowing £3,000. The Applicant bought the said property as an investment as it seemed foolish to continue in rented accommodation and did not see any return.

7 In 1974, the Respondent's parents died. In 1977, the Applicant was made redundant and received a redundancy pay of £1,000 and purchased a bigger house for £7,000. In 1980, the Applicant commenced divorce proceedings against the Respondent and obtained a Decree Nisi on 16th December, 1980 and a Decree Absolute on 4th December, 1981. During 1981, the parties were reconciled and moved to the Respondent's parents” home in Ireland as was always their intention. The Applicant sold her home for £14,000 and received nett proceeds of £11,597.56 which were invested in the Respondent's parents” home, by this time the Respondent's home.

8 In 1990, the Respondent became involved with a third party and the Applicant, together with Roger and John, vacated the family home and went to England where Teresa was living. In July 1992, the Applicant and her two sons returned to live with the Respondent but due to the presence of the third party and continuing violence the marriage failed. In April 1993, the Respondent locked the Applicant out of the family home and she is now living in rented accommodation and existing on Social Welfare. Barring Order proceedings were instituted but no final determination was made. The Applicant has not received maintenance from the Respondent or any financial contribution for the improvements carried out to his home in Ballaghaderreen. In addition, the Applicant provided all the furniture, curtains, carpets and household items from her own home in England.

LEGAL SUBMISSIONS ON BEHALF OF THE APPLICANT

9 Counsel are agreed that the law contained in W. -v- W., [1993] 2 I.R. per Blayney J. at page 506 applies herein. Blayney J. states that the rule to be applied in regard to the recognition of foreign divorces granted prior to 2nd October, 1986 and, in particular, the rule to be applied to the divorce of the plaintiff from J.E. is that such divorces should be recognised if granted in the country in which either of the parties to the marriage was domiciled at the date of the proceedings. Counsel for the Applicant will further rely on the decision of the Supreme Court in M.C.T. -v- M.T., [1982] I.L.R.M. and, in particular, the judgment of Henchy J. at 220 where he states:-

"Before the husband's domicile could be held to be Irish, it would have to be established that he had abandoned his British domicile of origin and had opted instead for an Irish domicile. This is a mixed question of law and fact. …The rebuttable presumption is that a person retains his domicile of choice.

In this case I think both the District Justice and the High Court Judge misdirected themselves in law in holding that the husband had acquired an Irish domicile of choice. I consider that they wrongly allowed employment and residence to be the decisive factors. Undoubtedly the husband left England with his wife and children, set up a family home in Cork and took up permanent employment there. In doing so he did no more than what tens of thousands of people are doing throughout the EEC where freedom of movement and mobility of employment are the order of the day under the Treaty."

10 Counsel for the Respondent will also rely upon the judgment of Budd J. in Clancy -v- The Minister for Social Welfare, [1994] Vol. 17, page 263 where he states:-

"While many factors have to be...