K (P) (Orse C) v K (T)

JurisdictionIreland
JudgeFENNELLY J.
Judgment Date05 March 2002
Neutral Citation[2002] IESC 15
Date05 March 2002
CourtSupreme Court
Docket Number171/00

[2002] IESC 15

THE SUPREME COURT

Keane C.J.

Murphy J.

Fennelly J.

171/00
K (P) (ORSE C) v. K (T)
FAMILY LAW
IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT,1996

BETWEEN

P K (Otherwise C)
APPLICANT/APPELLANT

and

TK
RESPONDENT

Citations:

FAMILY LAW (DIVORCE) ACT 1996 S5(1)

HURLEY V WIMBUSH 1956 IR 344

M (C) V M (T) 1991 ILRM 267

W V W 1993 2 IR 476

CORBETT V FAGAN 1946 IR 277

T V T 1983 IR 29

LAMBERT V AN TARD CHLARAITHEOIR 1995 IR 372

MCC (V) V MCC (J) UNREP SUPREME 28.7.1995 1995/10/2769

GAFFNEY V GAFFNEY 1975 IR 153

S (A) (ORSE B (A)) V B (R) UNREP SUPREME 19.12.2001

DICEY & MORRIS THE CONFLICTS OF LAW 13ED 762

T V T 1983 IR 29

Synopsis:

FAMILY LAW

Domicile

Foreign divorce - International law - Marriage - Residence - Animus manendi - Significance of language contained in separation agreement - Whether divorce granted in United States valid having regard to domicile of applicant - Whether applicant had reverted to domicile of origin - Family Law (Divorce) Act, 1996 (171/2000 - Supreme Court - 05/03/2002) - [2002] 2 IR 186

K(P) v K(T)

Facts: The applicant, an American citizen, and the respondent, an Irish citizen were married in New York in 1963. A deed of separation was entered into in 1977 in Dublin, the applicant returned to New York, and the parties lived separately thereafter. The respondent instituted divorce proceedings and a divorce was granted in the United States in 1980. The applicant questioned the validity of the divorce decree and averred that her Irish domicile still subsisted. Murphy J held that the evidence established that the applicant in returning to New York after 1977 had either reverted to her domicile of origin or had chosen New York as her domicile of choice. Therefore as a preliminary issue the domicile of the applicant at the time of the divorce decree was that of New York State. The applicant appealed the judgment to the Supreme Court.

Held by the Supreme Court (Fennelly J delivering judgment; Keane CJ and Murphy J agreeing) in dismissing the appeal. The issue of whether the appellant(applicant) had abandoned her Irish domicile of choice by leaving Ireland in 1977 and going to New York was, in the final analysis, one of fact for the High Court to determine. That court had determined that question in the affirmative. There was sufficient evidence before the learned trial judge to sustain his conclusion that the appellant had a New York domicile at the time of the divorce decree. Accordingly, that decree was entitled to recognition in Irish law.

1

JUDGMENT delivered the 5th day of March, 2002 byFENNELLY J. [nem diss]

FENNELLY J.
2

The appellant is the applicant in High Court proceedings, issued in 1999, in which she seeks a divorce from the respondent pursuant to section 5(1) of the Family Law (Divorce) Act,1996. The appellant and the respondent were married in New York on 20th April 1963. A decree of divorce was granted by a New York Court on 7th January 1980 on the petition of the respondent. The appellant contests the validity of that decree in Irish law, stating that neither party was at that time domiciled in New York. The judgment of the High Court (Murphy J), determined, as a preliminary issue, that the domicile of the appellant was that of New York State. Accordingly, the court ordered that the decree of the New York court was entitled to recognition in the State and that the marriage of the parties in 1963 did not subsist in the State.

3

The High Court hearing was partly oral and partly on affidavit. The learned trial judge, in particular, had the benefit of the oral evidence of the appellant including a detailed cross-examination.

4

This is an appeal against that judgment. Recognition of the New York decree depends on the domicile of the appellant being in New York. The domicile of the respondent was at all times Irish.

THE FACTS
5

The appellant was born in New York State in 1938, which gave her her domicile of origin. She has, however, an Irish family background and Irish relatives, which she cherishes and values highly. She came to Ireland to pursue a University degree in 1959. She obtained her an MA in 1963.

6

She met the respondent in Dublin in 1961. He moved to work at a university in the United States in 1962. The marriage took place in New York in April 1963. Both parties are teachers and writers.

7

The parties came to Ireland in September 1963. The three children of the marriage were born in 1964, 1965 and 1969. The respondent worked as a teacher in a secondary school and later at university. The appellant worked in the home looking after the family. In 1971 the appellant began to work at the same university. In 1972, the appellant was offered a full-time post at a university in the United States. For this reason and also to enable the respondent to concentrate on his writing, the family moved to the United States. In 1974, the family moved back to Ireland and purchased a house jointly with another couple.

8

Throughout the period from 1963 to 1977, the parties lived and worked primarily in Ireland, though occasional short-term teaching opportunities led one or other of them to go abroad for short periods.

9

During the years 1973 to 1977 the marriage began to be in difficulty. The parties were effectively living apart. The respondent obtained a teaching post in Paris for the first half of 1977. The parties entered into a separation agreement on 21st November 1977. About the same time the family home was sold. The separation agreement provided for the payment of certain maintenance by the respondent for a period of four years only. He was to have custody of the three children, subject to an unusual arrangement under which the appellant was to have custody of one child for a period of three years and then of another child for a further period of three years. During these periods the appellant was to be responsible for the maintenance of the child save that the respondent would pay for education but in the first period only. It is agreed that the marriage had irretrievably broken down by 1977. The parties have, subject to some financial disagreements, abided by the separation agreement.

10

In late 1977, the appellant moved to New York. She had no job here and little prospect of employment. So she went to seek employment in New York. She says that the circumstances of the breakdown of the marriage and her separation from her children were extremely painful. She has not, however, been particularly successful in her pursuit of employment. At one stage she had to undertake house work and then office work in New York. Later she has obtained teaching posts for various periods of time but has never had permanent employment. She obtained two Fulbright Fellowships from the United States Government, one to a university in Ireland and one to the Netherlands. She had a four-year university appointment up to 1999 but has no pension or life assurance.

11

The appellant returned to Ireland in the years 1977 to 1980 to see the children. The respondent asked her to find the name of a lawyer in New York to get a divorce there. This she did. The divorce was uncontested. The appellant did not ask for any provision, though the separation agreement was annexed to the decree.

12

The appellant has lived and worked in the United States since 1977 apart form the brief periods mentioned and she has a very small rent-controlled flat in New York City.

13

In the course of her evidence and, in particular, of her cross-examination, the appellant maintained that she had always intended to return to Ireland. She accepted that she had ceded responsibility for the children to the respondent. The ensuing exchange perhaps best sums up the tenor of the evidence which was before the High Court:

"Q

And I have to put it to you that the reason behind that separation agreement and that lead in provision of three years was to allow you to re-establish yourself on the academic circuit by making a return to New York?

A

I am sorry, this is not so. I am not -- that is not so. My effort to gain work to remain constant in Ireland had been going on for since '74 to '77. I could not establish myself. I had not benefits. I had not assistance. I had not employment. I had nothing to offer my children, I left my children. They were the dearest and are the dearest thing in my life. This was not something I did for my career.

Q

The only suggestion I am putting to you, Ms C was that at that time you signed the separation agreement you intended to revert and go back to New York and start a new career. That is all I am putting to you, nothing more than that?

A

I cannot accept that wording. I think it prejudices my being at that time, I signed that agreement because I was going back to New York to seek an

income and sustainability and to begin a life. I think there is a great difference in the language and the description of myself as a person."

14

She also spoke about getting "into the mainstream of academia" in the United States. It is clear that the appellant wishes to obtain an Irish divorce in order to seek maintenance from the respondent. She maintains, however, that she has continued at all times to maintain her Irish domicile. She became an Irish citizen and has maintained her citizenship and her Irish passport to this day.

THE HIGH COURT JUDGMENT
15

The learned trial judge said that the evidence given by both parties was sincere, heartfelt and genuine.

16

He cited the judgment of Budd JIn re Sillar. Hurley v Wimbush [1956] I.R. 344("In re Sillar"), stating that the proper inference to be drawn where a person is resident in the...

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