E. L. v S. K

JurisdictionIreland
JudgeMr. Justice Abbott
Judgment Date18 February 2011
Neutral Citation[2011] IEHC 557
CourtHigh Court
Date18 February 2011
L (E) v K (S)
FAMILY LAW

BETWEEN

E. L.
PETITIONER

AND

S. K.
RESPONDENT

[2011] IEHC 557

[No. 44 M/2010]

THE HIGH COURT

Family Law – The Family Law Reform Act, 1989 – The Family Law Act 1995 – O. 29 of the Rules of the Superior Courts – O. 70, r. 75 of the Rule of the Superior Courts.

Facts: Following a petition for judicial separation, the petitioner filed for a decree of nullity claiming absence of consummation of the marriage, psychological inability on the part of the respondent, and the fact that the marriage was neither a fully independent exercise of his will or based on his true consent. Subsequently, the proceedings seeking judicial separation were stayed pending the outcome of the nullity proceedings. The respondent by notice of motion now sought for security for costs seeking an order pursuant to o. 29 of the Rules of the Superior Courts for directing the respondent husband to provide security for the costs. The respondent further sought an order under o. 70, r. 75 of the Rule of the Superior Courts for payment up to date for the application and costs de die in diem to the trial of the action.

Mr. Justice Henry Abbott held that the applications under o. 29 and o. 70, r. 75 of the Rules of the Superior Courts would be refused. The Court observed that the application for costs de die in diem, was not seriously pressed. The Court held that the respondent failed to prove that the petitioner did not reside in the present jurisdiction.

FAMILY LAW REFORM ACT 1989

FAMILY LAW ACT 1995

FAMILY HOME PROTECTION ACT 1976

RSC O.70 r75

RSC O.29 r1

RSC O.29 r2

RSC O.29 r3

RSC O.29 r4

DELANEY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURT 2ED DUBLIN 2005 P346

DELANEY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURT 2ED DUBLIN 2005 PARA 12.04

WALKER v ATKINSON 1895 1 IR 246

DENMAN v O'CALLAGHAN 1897 31 ILTR 141

SALTHILL PROPERTIES LTD & CUNNINGHAM v ROYAL BANK OF SCOTLAND PLC & ORS 2011 2 IR 441 2010/46/11557 2010 IEHC 31

PITT v BOLGER 1995 1 IR 108

MAHER v PHELAN 1996 1 IR 95

PROTEA v NEILL 1996 1 IR 100

EUROPEAN FASHION PRODUCTS LTD & MURA v EENKHOORN & ORS UNREP BARR 21.12.2001 2001/9/2343

F v L 1991 1 IR 40

COURTNEY v COURTNEY 1923 2 IR 31

MATRIMONIAL CAUSES & MARRIAGE LAW (IRELAND) ACT 1870 S27

RSC 1986 O.70 r75

WILEY'S JUDICATURE ACT 1900

RSC O.70 r91

S (R) v S (P) UNREP ABBOTT 27.7.2009 2009/51/12796 2009 IEHC 579

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989

Y (X) v X (Y) UNREP ABBOTT 14.7.2010 2010/54/13516 2010 IEHC 440

1

JUDGMENT of Mr. Justice Abbott delivered on the 18th day of February, 2011

2

1. By petition dated the 2 nd July, 2010, the petitioner husband has claimed a decree of nullity in respect of a ceremony of marriage between the himself and the respondent wife on the 14 th May, 2004. In prior proceedings bearing Record No. 2009 5M, the respondent wife has claimed judicial separation pursuant to the Judicial Separation and Family Law Reform Act, 1989, and the Family Law Act, 1995, by special summons issued on the 12 th February, 2009.

3

2. The respondent wife, by notice of motion dated the 10 th November, 2010, applied for security for costs in terms of the paras. 1 and 2 of the said notice of motion as follows:-

4

1. An order pursuant to O. 70, r. 75 of the Rules of the Superior Courts directing the petitioner to pay to the respondent her costs of the cause up to the date hereof and her further costs de die in diem to the trial of the action herein and directing the Taxing Master to tax such costs.

5

2. Further or in the alternative, an order pursuant to O. 29 of the Rules of the Superior Courts directing the petitioner herein to provide security for the respondent's costs in the above entitled proceedings.

6

3. By order of this Court dated the 8 th November, 2010, prior to the issue of the said notice of motion, the said proceedings seeking judicial separation were stayed pending the outcome of the nullity proceedings herein on condition that the petitioner husband would do all acts which would be reasonably necessary to bring on the nullity proceedings for hearing in an expedited manner.

The Respondent Wife's Case
7

4. The respondent wife set out her case grounding her application for security for costs in her grounding affidavit sworn on the 10 th November, 2010. Therein she also relied on the averments contained in her replying affidavit to the petition for nullity herein, sworn on the 29 th October, 2010. The respondent wife summarises the grounds upon which the petitioner husband seeks annulment of their marriage. These are as follows:-

8

a A. There was no consummation of the marriage.

9

b B. The psychological inability on the part of the respondent wife or the petitioner husband to engage in sexual intercourse with each other.

10

c C. By reason of the state of mind, emotional development and/or immaturity of either of the parties herein that either or both or them were incapable of entering into and forming and sustaining a lifelong marital relationship with each other.

11

d D. The petitioner husband's agreement to enter into their marriage was not a fully independent exercise of his will and was not based on his true consent.

12

5. The respondent wife averred that there was, in fact, consummation of the marriage and set out details of a visit to a gynaecologist, the results of which she claimed would corroborate this. She also queried the genuineness of the claim about non-consummation as the affidavit of the petitioner's solicitor seeking a stay in the judicial separation proceedings averred that it 'emerged' that there was non-consummation only after the petitioner husband had consulted a psychologist in relation to the issue of nullity. She queried the psychological inability on the part of herself or the petitioner husband to engage in sexual intercourse and asserted that, after the ceremony of marriage, the parties had intimate sexual relations. As regards the state of mind, emotional development and/or immaturity of either of the parties such as to render either or both of them incapable of entering into or sustaining a lifelong marital relationship with each other, the respondent wife claimed that the averment of the petitioner husband caricaturing himself as being a simple man and the respondent wife being much too sophisticated for him was entirely untrue as the petitioner husband was a man of considerable financial and technical achievement. As regards the petitioner husband's averment that his agreement to enter into their marriage was not a fully independent exercise of his will and was not based on his true consent, the respondent wife referred to the long relationship between the parties, their courtship, long engagement and dealings subsequent to the marriage. The respondent wife claimed that after unhappy differences had arisen between them, the petitioner husband sought, with the threat of further 'consideration', the execution of a statutory declaration that the property sought to be charged by the petitioner husband was not a family home within the meaning of the term in the Family Home Protection Act, 1976, and a further similar supplemental statutory declaration was referred to. She stated that in his replying affidavit to the judicial separation proceedings the petitioner husband did not allege non-consummation of the marriage.

13

6. The respondent wife also relied, in addition to the petitioner husband's non-residency, on his lack of assets in the jurisdiction through indebtedness and the averment of property being held in a trust outside the reach of judicial separation proceedings or a decree of costs in the nullity proceedings, and referred to his unwillingness to answer further financial queries in the judicial separation financial disclosure process which impasse seemed to have sparked the nullity litigation.

The Petitioner Husband's Case
14

7. The petitioner husband sets out his grounds for resisting the notice of motion herein principally in his affidavit sworn on the 23 rd November, 2010. He avers that the respondent wife unsuccessfully opposed the application granted by the court for a stay on the judicial separation on the same grounds as are now relied upon to found the motion for security for costs. He also said that the issue of consummation had been met by the respondent wife with a contradiction which, in itself, did not amount to a 'substantial defence' and rebuttal of the petitioner husband's claims. He averred that there was no reason or justification for the respondent wife to seek security for costs on the basis of his tax residency, and the issue of his tax returns were introduced by the respondent wife to paint him in a prejudicial and unflattering light to the court, as if to imply that by virtue of his non-residency he somehow would seek to avoid the consequences of the litigation. The petitioner husband stated that he had never sought to disengage from any proceedings and that he remains a passport holder and is domiciled in the Republic of Ireland. He stated that several debts of his had been transferred to the National Asset Management Agency, a process which requires his continued involvement with assets, banking loans, and necessitates his continued presence in the State. He stated, as he claims will be seen from the affidavit of means sworn by him in June, 2009, that he has many assets within the jurisdiction and admitted that while his overall debt asset ratio is sizeable (in common with many litigants currently seeking relief in the family courts) he suggested that this should not make his access to the courts more difficult by having to underwrite the respondent wife's costs. He stated that it was noteworthy that the respondent wife was apparently or seemingly content to incur legal costs and to force the petitioner husband to...

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1 cases
  • Greene v Highcross Bars Ltd
    • Ireland
    • High Court
    • 22 October 2015
    ...of 'ordinary residence' was espoused by Abbott J. in S v. S [2009] IEHC 559. Making reference to this approach in E.L. v. S.K. [2011] IEHC 557, Abbott J. states as follows, at p.7 of his judgment: "In that case it was 'abundantly clear that lax domicile or residence would not be absolutely ......

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