Gaffney v Gaffney

CourtSupreme Court
Judgment Date11 April 1975
Date11 April 1975
Docket Number[1973. No.

High Court

Supreme Court

[1973. No. 24 Sp.]
Gaffney v. Gaffney
In the Matter of Henry Gaffney, deceased, and in the Matter of the Succession Act, 1965—Alice Gaffney
Lydia Gaffney

Conflict of laws - Marriage - Dissolution - Foreign decree of divorce - Parties domiciled in Ireland - Lack of jurisdiction - Fraud - Duress.

Special Summons.

The plaintiff and Henry Gaffney were married in Dublin on the 29th December, 1940, and they had several children. The plaintiff and her husband had been born in Ireland and they continued living there with their children. On the 1st April, 1957, the plaintiff filed a petition in the High Court of Justice (Probate, Divorce and Admiralty Division) Manchester District Registry—Record No. 1957 (D) No. 392. Paragraphs 4 and 5 of the petition stated that the plaintiff was residing at an address in Ireland and that the husband was residing at No. 22 Edward Street, Blackburn, England; and that the plaintiff and her husband were domiciled in England. Paragraph 9 of the petition stated that the petition was not presented or prosecuted in collusion with the husband. The plaintiff's prayer in the petition sought the dissolution of her marriage, the custody of her children, the provision of maintenance for herself and her children, the costs of the suit and further or other relief. At the foot of the petition the plaintiff made oath and swore that "the statements contained in my above petition are true" and signed her name below that statement.

Section 3 of Article 41 of the Constitution of Ireland, 1937, provides:—

"1 The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

2 No law shall be enacted providing for the grant of a dissolution of marriage.

3 No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved."

Article 50, s. 1, of the Constitution of Ireland provides:—

"Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."

The plaintiff's action was heard and determined by Kenny J. on the 21st June, 1973.

The appeal was heard on the 10th February, 1975.

In 1940 the plaintiff married her husband in Ireland and she lived there with her husband and their children. In 1957 the plaintiff petitioned the High Court of Justice in England for a decree of divorce and she represented to that court that she and her husband were domiciled in England. In January, 1959, the English court granted a decree absolute dissolving the marriage. Subsequently, the plaintiff by a written agreement surrendered improvidently certain rights conferred on her by the order of the English court. The husband married the defendant in April, 1959, and died intestate in 1972. In 1973 the plaintiff claimed in the High Court in Ireland a declaration that she was the lawful wife of the husband at the date of his death. At the hearing of the action the plaintiff adduced evidence to establish that she and her husband were domiciled in Ireland at the time of the divorce proceedings, that she had never wanted a divorce, and that she had acted under duress imposed by the husband at all material times.

Held by Kenny J., in making the declaration sought by the plaintiff, 1, that only the court of domicil of a husband and wife could have jurisdiction to dissolve their marriage by a decree of divorce a vinculo matrimonii.

Bank of Ireland v. Caffin [1971] I.R. 123 considered.

2. That the Court was entitled to investigate the relevant circumstances so as to discover whether the English court had jurisdiction to grant a divorce.

Pemberton v. Hughes [1899] 1 Ch. 781 and Shaw v. Gould, L.R. 3 H.L. 55 considered.

3. That the plaintiff and her husband had been domiciled in Ireland at all material times and that, accordingly, the English court had no jurisdiction to grant the divorce.

4. That the plaintiff was not estopped from denying the validity of the divorce.

5. That the divorce had been procured by the fraud and duress of the husband, and that the agreement had been procured by duress.

On appeal by the defendant it was

Held by the Supreme Court (O'Higgins C.J., Walsh, Henchy, Griffin and Parke JJ.), in disallowing the appeal, 1, that the Courts in Ireland do not recognise decrees of dissolution of marriage granted in divorce proceedings by foreign courts where the parties to the marriage were not domiciled within the jurisdiction of the foreign court at the time of those proceedings.

2. That the evidence adduced on behalf of the plaintiff was admissible to establish that the English Court lacked jurisdiction, and that the plaintiff was not estopped from denying the validity of the decree of that court.

Kenny J.

The husband, Henry Gaffney, was born in Dublin on the 22nd July, 1919; his father lived at No. 46 Lower Gloucester Street, Dublin, and is described in the husband's birth certificate as an ex-soldier. The plaintiff (née McGann) was born in Ireland and married the husband in December, 1940, in a Roman Catholic church in Dublin. The husband and the plaintiff were resident and domiciled in the area now known as the Republic of Ireland from the dates when they were born until the death of the husband in 1972.

They began their married life in a flat in Amiens Street, Dublin, and then moved to other premises and finally went to reside in Leopardstown, County Dublin, where they lived together for some years. They had seven children. The husband was a domineering man who was very successful in business. The husband treated the plaintiff with cruelty and used physical violence against her on a number of occasions so that she was very frightened of him. She discovered that the husband was having adulterous associations with other women but she remained living with him for the sake of the children. The husband then bought a house in Fairyhill, Blackrock, County Dublin, in his name; he intended this house to be a residence for his wife and children and she and they moved into it. However, the husband retained the house at Leopardstown and lived there, but he visited the plaintiff and his children at Fairyhill once or twice a week. The plaintiff did not wish to live apart from the husband but he compelled her to do so; she had been in poor health before she moved to Fairyhill. The husband also bought his mother, who was born in Ireland, a house in Blackburn in England, and when he went on visits to England he sometimes stayed with her.

The husband said to the plaintiff on a number of occasions that he wanted to get a divorce from her. She did not want this. Nevertheless, the husband in 1957 instructed a firm of solicitors in Manchester to prepare a petition by the plaintiff seeking a divorce a vinculo from him. The plaintiff never gave instructions to this firm that they were to act for her or that they were to apply for a divorce in her name. The solicitors prepared a petition in which the plaintiff was named as petitioner and in which it was stated that the husband resided at No. 22 Edward Street, Blackburn, England, and that the plaintiff and he were domiciled in England. The husband knew that both these statements were false. The husband never resided at No. 22 Edward Street, Blackburn; at all times the plaintiff and he were domiciled in the Republic of Ireland. The petition went on to state that the husband had deserted the plaintiff for three years and a divorce a vinculo was sought on this ground. The engrossment of the petition and a verifying affidavit by the plaintiff were sent to the husband by the solicitors, and the husband brought them to the plaintiff at Fairyhill and threatened her with physical violence if she did not swear the affidavit. The plaintiff then went to a commissioner for oaths in Dublin and swore it.

The plaintiff was a pathetic figure when giving evidence in this case— being nervous, confused about everything, and forgetful. The plaintiff swore that she signed the petition but denied that she had sworn an affidavit before a commissioner. I am satisfied that her evidence on this matter was given honestly but that she swore the affidavit before a commissioner. For many years before this she had been in bad health and I accept her evidence that she signed the document and subsequently went to Manchester with her husband to give evidence only because she had been threatened with physical violence by her husband and believed that he would assault her if she did not do what he demanded. The petition and the affidavit were then sent by the husband to the solicitors in Manchester who presented it to the High Court of Justice there. I have no doubt that the solicitors (who ostensibly were acting for the plaintiff) were receiving all their instructions from the husband: this is corroborated by a letter of the 3rd July, 1958, from the solicitors to the husband and addressed to him at No. 22 Derby Street, Blackburn. The letter was among the papers which were handed to me and it reads:—"Re Divorce—We have to-day received notice from the Court that the petition will be heard on Monday the 21st of July. We have been expecting to hear from you and we should now like to speak to you urgently. Will you kindly telephone to us as soon as possible?"

The next episode in this story would have provided Sir Alan Herbert with material...

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    ...indeed so far the only, statutory intervention in the field of recognition of foreign divorce. Walsh J. stated in Gaffney v. Gaffney [1975] I.R. 133 that the law of recognition of foreign divorces was the common law and that neither the coming into force of the 1922 or 1937 Constitutions ha......
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