K(P) v K(T)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Murphy |
| Judgment Date | 14 April 2000 |
| Neutral Citation | [2000] IEHC 49 |
| Court | High Court |
| Date | 14 April 2000 |
| Docket Number | No 60M/1999 |
[2000] IEHC 49
THE HIGH COURT
BETWEEN
AND
Citations:
SUCCESSION ACT 1965 S113
W V W 1993 2 IR 476
L (P) (LAMBERT) V AN TARD CHLARAITHEOIR 1995 2 IR 372
GAFFNEY V GAFFNEY 1975 IR 133
MCG (G) V W (D) 2000 1 ILRM 107
D (K) V C (M) 1985 IR 697
VISWALINGHAM V VISWALINGHAM 1980 1 FLR 15
M (C) V M ( T) (NO 2) 1990 2 IR 52
INDYKA V INDYKA 1966 3 AER 583
MAYO-PERROTT V MAYO-PERROTT 1958 IR 336
FAMILY LAW (DIVORCE) ACT 1996 S39(i)
SILLAR, RE: HURLEY V WINDBUSH 1956 IR 344
Synopsis
Family Law
Divorce; domicile; applicant, an American citizen, had come to Dublin in 1959 and had completed her Master's degree in 1963; applicant's parents had lived in New York for at least 10 years prior to her birth; applicant's parents were still in New York at time of her return to get married and at time of her return to New York after her separation; applicant had returned to New York in 1963 with respondent, an Irish citizen, whom she married; parties returned from New York in 1963; between 1963 and 1971 parties had resided in Ireland; in 1972 parties and their three children, born in 1964, 1965 and 1969, had gone to the United States; respondent had returned with two of the children in 1974 while applicant had returned later that year; applicant averred that in 1977, she had reluctantly gone to New York to obtain employment, since marriage had broken down and she had no financial support; prior to her departure, in 1977, a deed of separation had been signed between the parties; respondent, as plaintiff, had instituted divorce proceedings in New York and a decree of divorce had been obtained without opposition in 1980; applicant was still living in New York at that time and had continued to maintain accommodation there since that time; whether applicant was domiciled in Ireland or in New York at material time; Family Law (Divorce) Act, 1996.
Held: The domicile of the applicant at the time of the 1980 divorce was that of New York State; applicant had either reverted to her domicile of origin or had chosen New York as her domicile of choice by maintaining her residence there for the past 22 years.
P.K. (otherwise C) v. T.K. - High Court: Murphy J. - 14/04/2000
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 since then. 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.
Judgment of Mr. Justice Murphydelivered the 14th day of April, 2000.
The issue in this case is whether a divorce which was applied for by the Respondent and granted unopposed at the New York State Supreme Court on 7th January, 1980 was valid, having regard to the domicile of theApplicant.
The parties were married on 20th April, 1963 in New York. The three children of the marriage are now adult.
By Deed of Separation made in Dublin on 21st November, 1977 where both parties appear to have been advised by different partners of the same firm of solicitors, the Respondent's signature was witnessed by a secretary in a different firm of solicitors. The parties have lived separately since then and there is no family home.
The Applicant, an American citizen, came to Dublin to study in 1959 and completed her Master's Degree in 1963. She met the Respondent, an Irish citizen, whom she agreed to marry and to follow him over to New York when she completed her studies. Her parents had lived in New York for at least 10 years prior to her birth. She and her siblings were reared in New York. The parents and siblings were there at the time of her return to get married and, indeed, at the time of her return to New York after her separation.
The parties returned from New York in September 1963. From 1963 to 1971 the Applicant resided at home looking after the three children of the marriage who were born in 1964, 1965 and 1969. The Respondent worked in a secondary school and subsequently at university.
In 1971 the Applicant commenced part-time teaching at the same university. In 1972 she was offered a full-time appointment for one year at the University of Maine in the United States which appointment was extended for a further year. As a result in August 1972 the parties and their children went to the United States. The Respondent returned with two of the children in early summer 1974 while the Applicant returned in late summer.
The Applicant says in her Affidavit that the marriage was going through a difficult period at that time and that there were many difficulties arising between them. They were also purchasing a house together with another couple to make the purchase easier. She says that finally and exceedingly reluctantly she decided to go to New York in late 1977 in order to obtain employment since the marriage had broken down and, she says, she had no financial support.
Prior to her leaving on her own, the Deed of Separation was signed between the parties on 21st November, 1977. The family home was sold at the same time.
The terms of that separation agreement are significant:-
2 (1)(a) That the said wife may at all times hereafter live apart from the said husband as if she were unmarried and that she should be free from the authority and control of the said husband and may reside at such place or places and either in or out of business and in such manner as she shall think fit;
(2) Suspended.
a (3)(b) Each of them the said husband and the said wife do hereby renounce pursuant to Section 113 of the Succession Act, 1965his or her legal rights to the estate of the other of them or his or her right share in the estate of the other of them on the intestacy of the other of them.
b (3)(c) The said husband and wife shall have access to the children at all times and the said husband shall have custody of the said children and have the sole responsibility for the maintenance and support of the said children until 1st September, 1978 after which date and for a period of three years, that is until 1st September, 1981, the said wife shall have custody of one child, the said child to be named by mutual agreement among the said husband and the said wife and the said child, and she the said wife shall have the sole responsibility for the maintenance and support of the said child with this proviso at all costs for the education of the said child will be paid by the said husband directly to the educational institution concerned for a period of three years, from 1st September, 1978 until 1st September, 1981.
c (3)(d) After 1st September, 1981 the said wife shall have custody of one child and the sole responsibility to the maintenance and support and education of the said child. Likewise, the said husband after 1st September, 1981 shall have custody of two children and the sole responsibility for the maintenance and support and education of the saidchildren.
d (3)(e) The terms and conditions of this agreement (illegible) shall be fixed and absolute unless at the end of five years from the execution of these persons either party wishes the agreement to be subject to revision and indicates thus by giving one month's notice in writing immediately prior to the termination of five years from the execution hereto.
It is common case that there was no revision of the said agreement.
The agreement was drawn up by McCann Fitzgerald Roche & Dudley, Solicitors and initialled BOB/ES.
The Respondent's signature was witnessed by the secretary in Young & Company, Solicitors while the Applicant's was witnessed by Harriet Spicer of London SW10.
No issue is taken by the Respondent that the parties were advised by two partners in McCann Fitzgerald Roche & Dudley.
The Respondent, as Plaintiff, instituted divorce proceedings in New York. A Decree of Divorce was obtained on 7th January, 1980. That decree incorporated the separation agreement executed on November 21st, 1977 which was annexed to the findings of fact and was stated in the decree to be incorporated by reference in the judgment.
The divorce judgment ordered and adjudged that the Plaintiff (the Respondent herein) "shall have judgment that the marriage of the parties is dissolved on the evidence found in the findings of fact and conclusions of law in accordance with the domestic relations law, Section 170, Sub (6), and that the custody of the named children and payment to the wife should be as per the separation agreementattached".
The Applicant says that she did not oppose the said decree one way or another or seek any relief as she was in poor financial circumstances at the time.
She avers as follows:-
"I say and believe and am advised that the validity of the said decree is questionable in all the circumstances and I say and believe that I still retain my Irish domicile and although I have lived in various parts of the United States I have never obtained permanent pensionable employment and have always wanted to live in Ireland and to return there when possible. I say and believe that I had little or no employment prospects in Ireland at that time and the breakdown of my marriage was extremely painful. In all the circumstances I felt I had no option but to leave. However, it was extremely painful for me as my children were here, my...
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