G McG v DW and AR

• Jurisdiction: Ireland
• Judgment Date: 18 June 1999
• Date: 18 June 1999
• Docket Number: Record No. 1998/40M
• Court: High Court

THE HIGH COURT

Record No. 1998/40M

BETWEEN

G McG

PETITIONER

AND

D W

RESPONDENT

AND

AR

NOTICE PARTY

Abstract:

Family Law - Recognition of Foreign divorces - Validity of decree of dissolution of marriage - Whether the Court has jurisdiction to re-open a case and join the Attorney General as a party after a final order has been made - Whether it was open tot the Court to grant declaratory relief in the absence of a Legitimus Contradictor - Rules of the Superior Courts 1986, Order 15, r. 13 - Rules of the Superior Courts 1986, Order 28, r. 11 and r. 12 - Rules of the Superior Courts 1986, Order 60, r. 2 and r. 4 - Family Law Act 1995 (No 26).

The Court does not have any jurisdiction to alter an Order it had previously made unless there had been a slip in the judgement or the Order drawn up did not accurately reflect what the Court had decided. By virtue of section 29 of the Family Law Act 1995 the Court had jurisdiction declare that a divorce was valid within the State even where the Attorney General was not a party to the proceedings, although this declaration was binding on the parties only and not the State. The High Court so held in refusing the relief sought.

1 JUDGMENT of Mrs Justice McGuinness delivered the 18th June 1999

2 The above entitled proceedings were heard by me in November 1998. At the conclusion of the proceedings, on 12th November 1998, due to the then urgency of the matter, I made an Order by way of declaration pursuant to Section 29 (1) of the Family Law Act 1995 that the Decree dated the 12th day of February 1985 of dissolution of the marriage solemnised at the Roman Catholic Church of Rathmines in the Registrar’s district of Rathmines in the Superintendent Registrar’s district of Dublin in the County of Dublin on the 27th day of October 1967 between the said Petitioner and the said Notice Party was a valid Decree and entitled to recognition in this jurisdiction. In addition I dismissed the Petitioner’s application for a Decree of Nullity in respect of his marriage to the Respondent which was

3 solemnised at the Register Office District of Westminster in the City of Westminster on the 15th day of November 1985. At the time I reserved the setting out of reasons for the decision which I had reached. On the 14th of January 1999 I gave judgment setting out my reasons. At that stage I considered that the proceedings before me were concluded.

4 The Attorney General now seeks in a limited way to reopen the proceedings. By Notice of Motion issued on the 10th of March 1999 he seeks an Order pursuant to Order 15 Rule 13 or in the alternative to Order 60 Rules 2 and 4 of the Rules of the Superior Courts or in the further alternative pursuant to the inherent jurisdiction of the Court joining the Attorney General as a Notice Party to these proceedings. This Notice of Motion having been served on the Petitioner, the Respondent and the Notice Party, the matter was argued before me on the 22nd of April 1999. The Notice of Motion was grounded on the affidavit of Grainne O’Mahony, a Principal Solicitor in the office of the Chief State Solicitor. A replying affidavit was sworn by Rosemarie Loftus, Solicitor for the Petitioner. The other parties did not file replying affidavits but it was made clear by their Counsel in Court that they were opposed to the granting of the Order sought by the Attorney General.

5 In her affidavit Grainne O’Mahony, Solicitor draws attention to the provisions of Section 29 (4), 29

• (5)

  and 29 (8) of the Family Law Act 1995 (“the 1995 Act”) which permit the serving of notice of declaratory proceedings on the Attorney General. She states at paragraph 7 of her affidavit that she is advised by Counsel that it is a principle of the law in respect of declarations that the person seeking same must be able to secure what has been described as " a proper contradictor”.She notes that, as was stated in my own judgment, no submissions were advanced to contradict the submissions that were made to the Court on behalf of the parties to the proceedings. She refers to the Attorney General’s present concern as to the state of the law in relation to the recognition of foreign divorces and more particularly as to the effect to be given to the judgment of this Court. At paragraph 13 of her

  affidavit she states that she is advised by Counsel that it would be appropriate, notwithstanding the relief already granted herein, to make an Order joining the Attorney General as a party to these proceedings. Should such an Order be made she states that it is the intention of the Attorney General to appeal the Orders already made herein to the Supreme Court. Senior Counsel for the Attorney General, Mr. Fitzsimons, made it clear to this Court that, if joined in the proceedings, the Attorney General will in his proposed appeal to the Supreme Court not merely endeavour to clarify the law on the recognition of foreign divorces and its effect on the State but will actively contest the conclusions which I reached with regard to the recognition of the divorce of the Petitioner and the Notice Party which was decreed by the English Court on the 12th of February 1985. If this Court grants the Order sought by the Attorney General, the Attorney General will immediately move the Supreme Court for an extension of time for leave to appeal.

  In her replying affidavit on behalf of the Petitioner Ms Rosemarie Loftus, Solicitor, avers that, in reliance on the judgment of this Court, the Petitioner sought a divorce in the High Court of Justice in England and Wales in respect of his marriage to the Respondent of the 15th day of November 1985. That Court granted a Decree Nisi on the 30th day of December 1998 and a Decree Absolute on the 11th day of February 1999. Ms Loftus points out that the Petitioner has in all respects relied on the judgment of this Court and that his only concern had been to resolve the outstanding questions effecting his marital status so that he could proceed on a clear established basis in the relationship he had formed since the breakdown of his marriage with the Respondent. Were the proceedings to be reopened, the position of the Petitioner and of the other parties would be rendered uncertain again to their great disadvantage.

  Section 29 of the Family Law Act 1995 provides as follows:

  “DECLARATIONS AS TO MARITAL STATUS

  29 (1) The Court may, on application to it in that behalf by either of the spouses concerned or by any other person who, in the opinion of the Court, has a sufficient interest in the matter, by Order make one or more of the following declarations in relation to a marriage, that is to say:

  • (a) A declaration that the marriage was at its inception a valid marriage,

  • (b) A declaration that the marriage subsisted on the date specified in the application,

  • (c) A declaration that the marriage did not subsist on the date so specified, not being the date of the inception of the marriage,

  • (d) A declaration that the validity of a divorce, annulment or legal separation obtained under the civil law of any other country or jurisdiction in respect of the marriage is entitled to recognition in this State,

  • (e) A declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in this State.

• (2) The Court may grant an Order under subsection (1) if but only if either of the spouses concerned

  • (a) is domiciled in the State on the date of the application

  • (b) has been ordinarily resident in the State throughout the period of one year ending on that date, or

  • (c) died before that date and either -

    • (i) was at the time of death domiciled in the State or

    • (ii) had been ordinarily resident in the State throughout the period of one year ending on that date

• (3) The other spouse or the spouse concerned or the personal representative of the spouse or each spouse, within the meaning of the Act of 1965, shall be joined in proceedings under this Section.

• (4) The Court may, at any stage of proceedings under this Section of its own Motion or on application to it in that .be half by a party thereto, order that Notice of the proceedings be given to the Attorney General or any other person and that such documents relating to the proceedings as may be necessary for the purposes of his or her functions shall be given to the Attorney General.

• (5) The Court shall, on application to it on that behalf by the Attorney General, order that he or she be added as a party to any proceedings under this section and, in any such proceedings, he or she shall, ~f so requested by the Court, whether or not he or she is so added to the proceedings, argue any questions arising in the proceedings specified by the Court.

• (6) Where notice of proceedings under this Section is given to a person (other than the Attorney General), the Court may, of its own motion or on application to it in that behalf by the person or a party to the proceedings, order that the person be added as a party to the proceedings.

• (7) Where a party to proceedings under this Section alleges that the marriage concerned is or was void, or that it is voidable, and should

  be annulled, the Court may treat the application under subsection (1) as an application for a Decree of Nullity of Marriage and may forthwith proceed to determine the matter accordingly and may postpone the determination of the application under subsection (1).

• (8) A declaration under this Section shall be binding on the parties to the proceedings concerned and on any person claiming through such party and, the Attorney General is a party to the proceedings, the declaration shall also be binding on the State.”

  The remainder of the section is irrelevant. Order 15 Rule 13 of the Rules of the Superior Courts on which the Attorney General relies in his Motion deals with...