L.B. v Ireland, Attorney General and by order P.B

JurisdictionIreland
JudgeMr. Justice John MacMenamin
Judgment Date07 July 2006
Neutral Citation[2006] IEHC 275
CourtHigh Court
Docket Number[2004 No. 19745 P]
Date07 July 2006
B (L) v IRELAND & ORS

BETWEEN

L.B.
PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL AND BY ORDER P.B.
DEFENDANTS

AND

L.B.
IRELAND AND THE ATTORNEY GENERAL AND P. B.
CONSOLIDATED BY ORDER DATED 6 th MARCH 2006

[2006] IEHC 275

[No. 19745 P/2004]
[No. 2448 P/2005]

THE HIGH COURT

CONSTITUTIONAL LAW:

Family

Marriage - Judicial separation - Divorce - Personal rights - Maintenance - Statute providing for grant of decree of judicial separation where no fault applicable to either spouse - Whether failure by State to safeguard institution of marriage - Whether failure to safeguard family - Property rights - Whether unjust attack on property rights -Whether personal rights unlimited - Whether court's power to order maintenance appropriate and proportionate - "Proper provision" - Parallels between provisions relating to financial relief under Act of 1989 and Act of 1986 - Statute - Validity - Constitutionality on statute's face - Whether unconstitutionality on statute's face could be contended where statute previously found constitutional - Presumption of constitutionality - TF v Ireland [1995] I IR 321; N v K [1985] IR 753 and DT v CT [2002] 3 IR 334 applied - Judicial Separation and Family Reform Act 1989 (No 6), ss 2(1)(f ), 3(1), - Family Law (Maintenance of Spouses and Children) Act 1976 (No11), s 5(1)(a) - Family Law (Divorce) Act 1996 (No33), ss 5, 12 to 21 - Constitution of Ireland 1937, Articles 34, 40.3 and 43 - Plaintiff's claim dismissed (2004/19745P - MacMenamin J - 7/7/2006) [2006] IEHC 275 B(L) v Ireland

: The plaintiff sought to impugn the constitutionality of s. 5(1)(a) of the Family Law (Maintenance of Spouses and Children) Act 1976, s. 5 & ss. 12 to 21 of the Family Law (Divorce) Act 1996 and s. 2(1)(f) and s. 3(1) of the Judicial Separation and Family Law Reform Act 1989 as being repugnant to Articles 34, 40.3 and 43 of the Constitution.

Held by MacMenamin J., in refusing the reliefs sought that the issues raised by the plaintiff had previously been determined by the Supreme Court in TF v. Ireland [1995] 2 1 IR 321 and DT v. CT [2002] 3 IR 334 and the provisions as challenged had been upheld as consistent with the Constitution. The plaintiff had failed to raise any justiciable question.

Reporter: E.F.

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976 S5

FAMILY LAW (DIVORCE) ACT 1996 S14

FAMILY LAW (DIVORCE) ACT 1996 S17

FAMILY LAW (DIVORCE) ACT 1996 S18(10)

FAMILY LAW (DIVORCE) ACT 1996 S13

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976 S5(1)(A)

CONSTITUTION ART 43

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(F)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S3(1)

CONSTITUTION ART 34

CONSTITUTION ART 40.3

F (T) v IRELAND & AG 1995 2 ILRM 321

T v T 2002 3 IR 334 2003 1 ILRM 321 2002/26/6842

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S3

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S16(A)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S19

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S3(2)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S5

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S6

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S19

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S20

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S16(A)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S22(1)

BLAKE v AG 1982 IR 117

M v AN BORD UCHTALA 1975 IR 81

LOFTUS v AG 1979 IR 221

BUCKLEY & ORS v AG 1950 IR 81

CROTTY v AN TAOISEACH 1987 IR 713

D (T) v MIN EDUCATION & ORS 2001 4 IR 259

CONSTITUTION ART 15

CONSTITUTION ART 15.4.1

CONSTITUTION ART 43.2.2

ART 26 OF THE CONSTITUTION & THE MATRIMONIAL HOMES BILL 1993, IN RE 1994 1 ILRM 241

L v L 1992 ILRM 115

N v N 1992 ILRM 127

CONSTITUTION ART 41

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(E)

N v K 1985 IR 733

RYAN v AG 1965 IR 294

MATRIMONIAL CAUSES & MARRIAGE LAW (IRL) AMDT ACT 1870 S13

JUDICATURE (IRL) ACT 1887

COURTS OF JUSTICE ACT 1924 S17

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2

MENTAL TREATMENT ACT 1945 S260

1

JUDGMENT of Mr. Justice John MacMenamin dated the 7th day of July. 2006.

2

At the conclusion of this hearing I dismissed the application of the plaintiff and indicated I would furnish my reasons at an appropriate time. I now do so. The plaintiff in these proceedings married the third named defendant, P.B., on 30 th December, 1964. There are five children of the marriage all of whom have attained the age of majority. The family home is in rural town in the West of Ireland. The plaintiff in these proceedings was a teacher and the third named defendant was at all relevant times a full-time housewife.

3

The plaintiff states in the statement of claim that on 25 th February, 1984 he was diagnosed as suffering from a form of mental illness. He was placed in St. John's of Hospital Co. Dublin and detained there until 16 th May, 1984. Further such placements took place between 27 th January, 1987 until 16 th April, 1987, and from 17 th January, 1991 until 7 th February, 1991 on foot of a similar diagnosis. The plaintiff states that he did not suffer from such an illness and that the grounds of the diagnoses were untrue and manufactured. No finding is necessary on these issues.

4

It is quite clear however that the relationship between husband and wife deteriorated. A number of legal proceedings were initiated. His wife sought maintenance against the plaintiff herein. The District Court made an order under s. 5 of the Family Law Maintenance of Spouses and Children Act 1976 directing him to maintain her.

5

Later, in 1996, the plaintiff received an application for judicial separation from his estranged wife (Record No. F63/96 Western Circuit). Orders were made in the Circuit Court and these were ultimately appealed to the High Court. Final orders were made in that case on 23 rd July, 1998. These included orders that the plaintiff pay maintenance at the rate of £150 per week to his wife, that the dwelling house be sold and the net proceeds be divided on a 50:50 basis; and that the plaintiff vacate his dwelling house by 7 th August, 1998 pending the sale thereof. The plaintiff states that he complied with the orders made on that day but that he refused to sign an authority for the sale of his dwelling house.

6

On 18 th June, 2004 a Family Law Civil Bill was issued by the plaintiff himself (F171/03) from the Circuit Court office. Orders were made in that matter in the Circuit Court which were appealed by the plaintiff herein to the High Court on Circuit (Finlay Geoghegan J., 2 nd December, 2004). During the course of this Circuit Appeal in the course of a written submission ably made by himself the plaintiff drew the attention of the court to what he contends was the "excess of" jurisdiction exercised in determining his property rights at that and previous hearings.

7

In the first place it must be observed that the decision or order of a judge of the Superior Courts exercising her jurisdiction as such is not amenable to judicial review power under the Constitution of Ireland.

8

Second Finlay Geoghegan J. having heard submissions held that ss. 12 to 21 of the Family Law (Divorce) Act 1996 enjoyed the presumption of constitutionality. The Court then made orders which included an order for the sale of the plaintiff's dwelling house, the distribution of the net proceeds of sale on the basis of 40% to the plaintiff and 60% to his wife; an Order pursuant to s. 14 of the Family Law (Divorce) Act 1996 granting the contents of the family home to the wife save for some personal effects; a further Order granting a 25% share of the retirement pension of the applicant for the reckonable period of 30 th December, 1964 to 10 th June, 2004 to the wife pursuant to s. 17 of the Family Law (Divorce) Act 1996; an Order pursuant to the same Act granting to the applicant the entirety of his retirement gratuity; a further Order directing that all of the contingent benefit of the applicant's pension scheme be paid to the wife; an Order pursuant to s. 17 of the same Act directing that the widow's pension of the applicant's pension scheme be payable to the respondent; an Order pursuant to s. 18(10) of the Family Law (Divorce) Act 1996 that neither applicant nor the respondent wife should be entitled to apply for relief on the death of the other; and finally, a further an Order pursuant to s. 13 of the Family Law (Divorce) Act 1996 continuing the existing maintenance whereby the plaintiff herein was directed to pay the sum of IR £140 per week to his wife. The issue which must therefore arise is whether the questions which are raised in this application are already res judicata.

9

In the first set of proceedings brought presently before this court (2004 No. 19745 P) the plaintiff seeks to impugn the constitutionality of s. 5(1)(a) of the Family Law (Maintenance of Spouses and Children) Act 1976; and a declaration that s. 5 and ss. 12 to 21 inclusive of the Family Law (Divorce) Act 1996 are repugnant to the provisions of the Constitution of Ireland on the basis that the orders made in the divorce proceedings are invalid, and constitute legislation pursuant to the provisions of Article 43 of the Constitution of Ireland 1937 and are thereby ultra vires the judicial power of the State. The plaintiff also seeks an order of certiorari quashing all the orders made in the matrimonial proceedings between himself and his wife insofar as they impinge on his constitutional property rights.

10

On 14 th July, 2005 the plaintiff issued a second set of proceedings wherein he sought similar declarations with regard to s. 2(1)(f) and s. 3(1) of the Judicial Separation and Family Law Reform Act 1989 together with declarations that, by enacting the...

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