K -v- K, [2004] IESC 21 (2004)

Docket Number:100/03
Party Name:K, K
Judge:Murray J. / Fennelly J. / Denham J. / McGuinness J.


THE SUPREME COURTS.C. No. 100 of 2003


Denham, J.

Murray, J.

McGuinness, J.

Fennelly, J.

McCracken, J.

BETWEEN CKApplicantAnd


F McGNotice Party

Judgment delivered on the 30th day of March, 2004 by Murray J.

The respondent's defence in these proceedings pending before the Circuit Court is based on his own deceit and fraudulent statements.

He says that by reason of his own deceit and fraudulent misrepresentation concerning his marital status he cannot be treated as if he had been, at any time, validly married to the Applicant with whom he went through a ceremony of marriage at the Registry Office, Dublin on the 25th March, 1983. Thereafter he cohabited with her as husband and wife for seventeen years, there being two children of that 'marriage'. They lived in the family home, purchased in joint names, where they continue to reside, with the two children pending the determination of these proceedings. The relationship between both parties having broken down, the applicant initiated proceedings in the Circuit Court in September, 2001 seeking an order of judicial separation pursuant to the Judicial Separation and Family Law Reform Act 1989 and various other reliefs pursuant to that Act including sole custody of the dependant children, maintenance as well an order in respect of the family home pursuant to the Family Home Protection, Act, 1976.

The respondent in resisting the applicant's claim before the Circuit Court on the grounds that he was never lawfully married to her asserts that she does not, and never did, enjoy the status of his wife. Accordingly, she is not entitled to the remedies which she seeks pursuant to the Act of 1989 or any other remedies based on the premise that they were lawfully married such as any order pursuant to the Act of 1976.

As a result of the issues which arose from this defence the learned Circuit Judge stated a question of law for the opinion of this Court pursuant to section 16 of the Courts of Justice Act 1947. I will come to that question in a moment, but first of all I would summarise briefly the relevant facts relied upon by the respondent and set out in the Case Stated.

The respondent married for the first time, in Dublin, on the 7th September, 1968. There was one child of that marriage. In or about 1972, that marriage having failed, the respondent and his wife separated. His wife followed her own career, and did not seek maintenance from him. Since then she effectively had nothing more to do with him and carried on her life quite independently of him. In the late 1970s the respondent and the applicant developed a relationship. In 1981 and 1982 the respondent had occasion to go to the State of Ohio, in the United States, on business trips. With the assistance of an attorney there, with whom he had a social friendship, he applied to the courts in Ohio for a divorce in respect of his marriage in 1968 to his wife. He lodged with the Ohio court papers calculated to mislead it by providing incorrect information relating to an address which he claimed to have in Ohio State and as regards his residency there. This deceit he persisted in to the final hearing of the application and the purported granting of the divorce by the court in Ohio in March, 1982.

His wife of the marriage of 1968 was notified of the divorce application but according to the findings of the learned Circuit Judge was more bemused than anything else by the application since, having lived a life totally independently of the respondent for many years and not wishing to have anything to do with him, she did not consider it could have any practical effect from her point of view. Therefore she took no active interest in the divorce application.

In 1983 he applied to the general register office in England for recognition of the Ohio divorce but this was refused.

All this was done in the context of both the applicant and the respondent desiring to be married. When it came to the marriage the applicant, being aware of the earlier marriage, sought the divorce order which the respondent had informed her he had obtained. As found by the learned Circuit Court Judge and set out in the Case Stated, "… on its reading it seemed to her that a judge of capable authority, who had the attendance of the respondent in court and was satisfied of all legal requirements, had granted the divorce sought."

The learned Circuit Judge also found in his judgment, annexed to the Case Stated, that the respondent, "realising he was not properly divorced, actively concealed that fact from the Registrar and from her" [the applicant].

From the findings of the learned Circuit Judge and the facts set out in the Case Stated it is clear that the applicant bona fide entered into the marriage which was solemnised at the Registry Office Dublin in March, 1983.

It is common case that a divorce obtained in the United States in respect of a marriage solemnised in Dublin, where both parties are domiciled in Ireland, could not be regarded as a valid divorce in law. Moreover, the respondent having, on his own admissions, knowingly deceived the court in Ohio, knew that it had been improperly obtained, even in terms of the law of Ohio. He relies on his deceit and the invalidity of the Ohio divorce as a basis for resisting the applicant's otherwise legitimate claims. He deceived the applicant by presenting her with a copy of the Ohio order for divorce as a valid divorce entitling him to become lawfully married to her. That was manifestly a fraudulent misrepresentation designed to, and which had the effect of, inducing her to go through the marriage ceremony in Dublin.

A key issue which arose in the Circuit Court was whether the respondent was estopped as between himself and the applicant, from relying on the unlawful status of the marriage ceremony which he went through with the applicant. Could he rely on the invalid and ineffective nature of the Ohio divorce to resist the remedies which the applicant now sought as an estranged wife having previously relied on that divorce as being valid for the purpose of inducing her marry him? The question of law posed by the learned Circuit Court Judge for the opinion of this court is in the following terms:-

"Whether I am entitled to hold in these proceedings as a matter of law, having regard to the findings of fact made by me, that the respondent is estopped from denying that he is married to the applicant?"

Fundamentally, the answer to that question turns on whether the law and principles set out by this court in Gaffney -v- Gaffney [1975] I.R. 133 applies. It is common case that if Gaffney -v- Gaffney does apply, the answer to the question posed by the learned Circuit Court Judge must be in the negative.

I have read the judgement of the President of the Court, Denham, J. and I fully agree with her judgment and her conclusion that the law as set out in Gaffney -v- Gaffney applies in this case.

I too have come to the conclusion that the law as stated in Gaffney -v- Gaffney is a comprehensive and complete statement of the law related to the issue raised in the question posed in the Case Stated. Denham, J. has cited extensively the relevant passages from Gaffney -v- Gaffney and, in order to avoid repetition, I will confine myself to citing what I consider to be the kernel of the decision in that case; "The plaintiff was either his wife or she was not. Apart from other legal incidence in this country, certain constitutional rights may accrue to a woman by virtue of being a wife which would not be available to her if she were not. The matter cannot therefore, by any rules of evidence be left in a position of doubt nor could the courts countenance a doctrine of estoppel if such existed, which had the effect that a person could be estopped from saying that he or she is the husband or wife, as the case may be, of another party when in law the person making the claim has that status."(Walsh, J. p.152).

However, there is one matter on which I would wish to add some observations and conclusions. I would state at this point that, having regard to my conclusions on that matter and my agreement with judgment of Denham, J, I am of the view that the answer to the question posed should be in the negative.

A remedy for a wrong?

The learned Circuit Court Judge when faced with the difficult issues raised in this case acknowledged the strength of the decision of this court in Gaffney -v- Gaffney as authority for the law on this matter but also stated "I believe that justice between the parties can only be achieved by prohibiting or estopping the respondent from attacking the validity of his divorce and by definition the validity of his marriage to the applicant."

The potential injustice of which he speaks is patent. The applicant bona fide went through a marriage ceremony with the respondent, she lived with him as wife and husband for seventeen years and bore two children. The marriage relationship broke down (essentially she says because of his problem with alcohol and related misbehaviour - although this is not strictly relevant to the legal issues) as a result of which she claims to be entitled by reason of her status as a wife to the statutory protection which the law affords namely, a judicial separation, custody of the children, maintenance and an order in respect of the family home. Absent the status of a lawfully married wife she is denied these remedies or, as the learned circuit judge appeared to contemplate, any remedy at all.

It was also submitted on behalf of the applicant that this Court should be slow to give an answer to the question raised by the trial judge which would mean that she would suffer such an injustice. It was submitted that this court should adopt principles of law which would ensure that justice is available to her, and also to others, who find themselves in a similar factual circumstance. One can well understand the...

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