Lambert v an tArd Chl iraitheor

• Jurisdiction: Ireland
• Judgment Date: 07 April 1995
• Date: 07 April 1995
• Docket Number: [1994 No. 163 J.R.]
• Court: High Court

High Court

[1994 No. 163 J.R.]

Lambert v. An tÁrd Chláraitheoir

Paul Lambert

Applicant

and

An tÁrd tárd Chláraitheoir, Respondent

Cases mentioned in this report:—

C. (M.) v. C. (M.) (Unreported, High Court, Geoghegan J., 20th January, 1994).

Clancy v. The Minister for Social Welfare (Unreported, High Court, Budd J., 18th February, 1994).

In re Fleming, Deceased [1987] I.L.R.M. 638.

F. v. An tÁrd tárd Chláraitheoir (1991 No. 9510P).

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

Gillis v. Gillis (1874) I.R. 8 Eq. 597.

L. (F.M.) v. An tArd Chlaraitheoir na bPosadh [1984] I.L.R.M. 667.

M. (C.) v. M: (T.) (No. 2) [1990] 2 I.R. 52; [1988] I.L.R.M. 456.

Mayo-Perrott v. Mayo-Perrott [1958] I.R. 336.

Moffett v. Moffett [1920] 1 I.R. 57.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237.

R. v. Brentwood Superintendent Registrar of Marriages, ex p. Arias[1968] 2 Q.B. 956; [1968] 3 W.L.R. 531; [1968] 3 All E.R. 279.

R. v. Hammersmith Superintendent Registrar of Marriages, ex p. Mir-Anwaruddin[1917] 1 K.B. 634; [1916-17] All E.R. Rep. 464.

In re Sillar; Hurley v. Wimbush [1956] I.R. 344.

The State (Keegan) v. The Stardust Victims Compensation Tribunal[1986] I.R. 642; [1987] I.L.R.M. 202.

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

Family law - Marriage - Registrar-General of Marriages - Registrar obliged to grant certificate of marriage if no lawful impediment shown - Whether Registrar empowered to investigate potential impediment of own volition or whether required to act only if caveat lodged by member of public - Whether Registrar entitled to look behind documentation relating to foreign divorce - Whether Constitution conferring extra-statutory powers and duties of investigation on Registrar-General - Regulations for the discharge of the Duties of Registrars and Deputy Registrars of Marriages in Ireland, 1892, arts. 34 and 38 - Marriages (Ireland) Act, 1844 (7 & 8 Vict, c. 81), ss. 16 and 23 - Constitution of Ireland, 1937, Article 41, s. 3, sub-s. 3.

Judicial review - Mandamus - Marriage - Certificate - Registrar-General of Marriages empowered to refuse certificate if lawful impediment to marriage existing - Whether Registrar-General exercising a discretion when applying law - Whether Registrar-General's decisions on matters of law subject to review only on grounds of reasonableness.

Conflict of laws - Domicile - Domicile of choice - Whether court entitled to act on uncontradicted testimony of intention to acquire domicile of choice - Whether grant of foreign divorce based on acquisition of domicile of choice conclusive evidence of acquisition of such domicile.

Constitution - Public office-holder - Whether statutory powers and duties of public servant augmented by provisions of Constitution - Constitution of Ireland, 1937, Article 41, s. 3, sub-s. 3.

Judicial review.

The facts and the relevant statutory provisions have been summarised in the headnote and are fully set out in the judgment of Kinlen J., infra.

On the 16th May, 1994, the High Court (O'Hanlon J.) granted leave to the applicant to apply, by way of application for judicial review, for:—

• (a) A declaration that the decree of divorce granted to the applicant and his first wife in England was a valid decree and was entitled to recognition under Irish law;

• (b) a declaration that the applicant was no longer a party to a valid subsisting marriage and was entitled to remarry under Irish law; and

• (c) an order of mandamus directing the respondent to issue a licence or certificate of marriage to the applicant.

The application was heard by the High Court (Kinlen J.) on the 13th January, 1995.

The Marriages (Ireland) Act, 1844, provides for the appointment of Registrars with powers to solemnise marriages by civil contract. Notice of such marriage must be served on the Registrar and thereafter, by s. 16 of the Act of 1844, the Registrar shall issue a certificate in the prescribed form "provided that no lawful impediment be shown to the satisfaction of the Registrar why such Certificate should not issue".

By s. 23 of the Act of 1844, any person may enter a caveat against the grant of a certificate; and where such caveat has been duly entered, "no Certificate . . . shall issue or be granted until the Registrar shall have examined into the matter of the caveat and is satisfied that it ought not to obstruct the grant of the Certificate".

By s. 4 of the Marriage Law (Ireland) Amendment Act, 1863, a notice of marriage must be accompanied by a declaration that there is no lawful hindrance to the marriage; and by s. 15, any person knowingly or wilfully making a false declaration for the purpose of procuring any marriage shall suffer the penalties of perjury.

By art. 34 of the Regulations for the Discharge of the Duties of Registrars and Deputy Registrars of Marriages in Ireland, 1892, if a notice is served for the marriage of a divorced person, the Registrar on whom it is served must refer the matter to the Registrar-General. By art. 38 of the regulations of 1892, where a Registrar has reason to believe there is some lawful impediment to a proposed marriage or that the declaration accompanying the notice may be false in some particular, he shall require the party to furnish satisfactory proof of the truth of the particular.

By s. 5, sub-s. 3 (a) of the Domicile and Recognition of Foreign Divorces Act, 1986, a divorce granted in England shall be recognised if either spouse is domiciled in England.

Article 41, s. 3, sub-s. 3 of the Constitution of Ireland, 1937, provides as follows:—

"No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved."

The applicant had at all material times been domiciled in Ireland, but his former wife had moved to England two years before obtaining a divorce there, and had remained there ever since. The applicant contended that his first wife had obtained a domicile of choice in England; that the divorce obtained by her was accordingly recognised in Ireland by virtue of s. 5, sub-s. 3 (a) of the Act of 1986; and that he was therefore entitled to marry in Ireland. The applicant's former wife swore an affidavit to the effect that she had come to England with the intention of establishing a permanent home there with her children.

The respondent was not satisfied that there was sufficient evidence that the applicant's first wife had acquired a domicile of choice in England at the time of the institution of the divorce proceedings; and accordingly refused to issue a marriage certificate under the Act of 1844 on the grounds that there was a lawful impediment to the applicant's proposed re-marriage; in particular, he contended that a declaration of intent to acquire a domicile of choice could not be afforded much weight.

The applicant contended that the respondent had no power to investigate any impediment to a marriage under s. 16 of the Act of 1844 unless a caveat had been entered pursuant to s. 23; that any such power conferred by the regulations of 1892 was invalid in that there was no such power conferred by the statute; and that the penalties prescribed by the Act of 1863 were sufficient to deter unlawful marriages without construing the statute to confer a power on the respondent to investigate, of his own volition, any possible impediment to a proposed marriage.

The respondent contended that he did have a power to investigate, of his own volition, any possible impediment to a proposed marriage, both under the Act of 1844 and the regulations of 1892; that as a public officer holder he had a further obligation to uphold Article 41, s. 3, sub-s. 3 of the Constitution; and that any determination made by him was subject to review only on grounds of unreasonableness.

Held by Kinlen J., in granting relief to the applicant, 1, that irrespective of the validity of the regulations of 1892, the respondent was entitled under s. 16 of the Act of 1844, to investigate of his own volition any possible impediment to a proposed marriage, and was not obliged to wait for a caveat to be lodged by a member of the public under section 23.

• R. v. Hammersmith Superintendent Registrar of Marriages, ex p. Mir-Anwaruddin [1917] 1 K.B. 634, R. v. Brentwood Superintendent Registrar of Marriages, ex p. Arias[1968] 2 Q.B. 956 and Clancy v. The Minister for Social Welfare (Unreported, High Court, Budd J., 18th February, 1994) considered.

2. That a disclosure to the effect that one of the parties to a proposed marriage had previously been married would be sufficient to entitle the respondent to investigate the circumstances under which a divorce had been obtained; and that while the respondent would be entitled to rely on the documentation relating to a foreign divorce, he was not precluded from looking behind it should circumstances so dictate, since the recognition of foreign divorces had to be resolved as a question of Irish law.

Clancy v. The Minister for Social Welfare (Unreported, High Court, Budd J., 18th February, 1994) considered.

3. That the correct ascertainment of the domicile of the parties to a divorce derived from the legislation governing the recognition of foreign divorces and was not a constitutional imperative.

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

4. That it was unnecessary to decide whether or not Article 41, s. 3, sub-s. 3 of the Constitution conferred on the respondent any powers additional to those conferred by the Acts of 1844 and 1863; and that it was difficult to see what purpose could be served by relying on the Constitution.

5. That in the instant case, the existence or otherwise of a lawful impediment to the applicant's proposed...