Kd (Otherwise C) v Mc

• Jurisdiction: Ireland
• Judgment Date: 01 January 1987
• Date: 01 January 1987
• Docket Number: [S.C. No.
• Court: Supreme Court

K.D. (otherwise C.) v. M.C.

K.D. (otherwise C.)

Petitioner

and

M.C.

Respondent

[S.C. No. 292 of 1984]

Supreme Court

Marriage - Dissolution - Conflict of laws - Foreign decree of divorce - Validity - Test applicable - Appeal to Supreme Court - Alternative test suggested - Whether Supreme Court may consider arguments not raised in High Court - Whether findings of fact in High Court sufficient to enable Supreme Court to consider new arguments.

The respondent husband married in Ireland on the 28th November, 1946. The couple resided in Ireland until 1955 when they separated and the wife went to live in England. The respondent continued to live in Ireland with his two children until 1961, when he was dismissed from his employment. The respondent then went to London, in September 1961, to seek employment.

His wife instituted divorce proceedings in England in 1959, and, on fulfilling the English statutory requirement of being not less than three years continuously resident in England, she obtained an English divorce on 25th April, 1962. The respondent married the petitioner on 21st June, 1962.

The petitioner sought a decree of nullity on the ground that the purported marriage between the petitioner and the respondent was bigamous, as the respondent on the aforesaid date was still married to another party under Irish law.

The High Court (Carroll J.) held that the marriage of 21st June, 1962, was null and void on the grounds that the respondent lacked the capacity to marry the petitioner as on the aforesaid date he was a party to a valid subsisting marriage in Ireland. The court, in refusing to recognise the English divorce, found that the respondent was domiciled in Ireland at the date of divorce and had not acquired a domicile of choice in England.

The respondent appealed to the Supreme Court on the grounds that domicile was not the only appropriate test to be applied by the courts with regard to the recognition of a foreign divorce decree, but that the alternative test of whether a real and substantial connection existed between the parties and the law of the country of the court granting the divorce should be applied as laid down in Indyka v. Indyka[1969] A.C. 33.

Held by the Supreme Court (Finlay C.J., Henchy, Griffin, McCarthy and McMahon JJ.), in dismissing the appeal, 1, that since the evidence before the Court did not show a real and substantial connection between the parties and England, the Court would be deciding a point of law upon theoretical facts which the Court should decline to do.

2. That notwithstanding the anomalies existing in the law of domicile, the test as laid down in Indyka's Case could not be considered as an alternative to the domicile test, when the domicile test was the only test raised in the High Court and arising on the facts of the case.

Indyka v. Indyka [1969] A.C. 33 distinguished.

Per Finlay C.J.: as a fundamental principle the Court should not hear and determine an issue which has not been raised in the High Court.

Cases mentioned in this report:—

Indyka v. Indyka [1969] A.C. 33; [1967] 3 W.L.R. 510; 2 All E.R. 689.

Travers v. Holly [1953] P. 246; [1953] 3 W.L.R. 507; [1953] 2 All E.R. 794.

T. v. T. [1983] I.R. 29; [1982] I.L.R.M. 217.

Gaffney v. Gaffney [1975] I.R. 133.

Counihan v. Counihan (Unreported, High Court, Kenny J., 27th June, 1973).

Mayo Perrott v. Mayo Perrott [1958] I.R. 336; (1958) 93 I.L.T.R. 195.

In the matter of E.E.L. (Infant) (1938) N.I. 56.

Chard v. Chard [1956] P. 259; [1955] 2 W.L.R. 98; [1955] 3 All E.R. 721.

L.B. v. H.B. [1980] I.L.R.M. 257.

Le Mesurier v. Le Mesurier [1895] A.C. 517.

Niboyet v. Niboyet (1878) 4 P.D. 1.

Angelo v. Angelo [1968] 1 W.L.R. 401; [1967] 3 All E.R. 314.

Perrini v. Perrini [1979] Fam. 84; [1979] 2 W.L.R. 472; [1979] 2 All E.R. 323.

Suko v. Suko (1971) Aust. L.R. 64.

Kish v. Invaskoics (1973) 2 W.W.R. 678.

Law v. Gustin [1976] Fam. 155; [1975] 1 W.L.R. 863; [1976] 1 All E.R. 123.

Brown v. Brown [1968] P. 518; [1968] 2 All E.R. 11; [1968] 2 W.L.R. 969.

Peters v. Peters [1968] P. 275; [1967] 3 W.L.R. 1235; [1967] 2 All E.R. 318.

Mather v. Mahoney [1968] 3 All E.R. 233; [1968] 1 W.L.R. 1773.

Olympia Productions v. Olympia Theatre (Unreported, Supreme Court, 31st June, 1979).

In re J.H. (inf:) [1985] I.R. 375; [1985] I.L.R.M. 302.

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

Leon v. Leon [1967] P. 275; [1966] 3 W.L.R. 164; [1966] 3 All E.R. 820.

Petition.

The petition was issued on 11th January, 1983. The petitioner originally sought a divorce a mensa et thoro on the grounds of cruelty. A citation was issued on foot of the said petition and a verifying affidavit by order of the Master of the High Court on 21st January, 1983. An answer and cross petition was filed by the respondent on 21st January, 1983. The respondent denied the petitioner's allegations of cruelty and cross petitioned for a decree of divorce a mensa et thoro, and alimony to be paid to him and in such sums and over such periods as the court saw fit in view of the petitioner's large financial resources. The petitioner issued an amended petition on 28th July, 1983, seeking a decree of nullity. An amended answer and cross petition was filed by the respondent on 15th March, 1984.

The case was heard in the High Court by Carroll J. on 29th, 30th, and 31st May, 1984. The High Court held that the decree absolute of a divorce granted by the High Court of Justice in England on 25th April, 1962. should not be recognised in this jurisdiction. The marriage of the 21st June, 1962, between the petitioner and the respondent was absolutely null and void by reason of the respondent's lack of capacity to marry the petitioner on that date in that he was at that date under Irish law a party to a valid subsisting marriage with another person...