M.E.C. v J.A.C. and J.O.C.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kinlen |
| Judgment Date | 09 March 2001 |
| Neutral Citation | [2001] IEHC 68 |
| Court | High Court |
| Date | 09 March 2001 |
[2001] IEHC 68
THE HIGH COURT
BETWEEN
AND
AND
BETWEEN
AND
AND
Citations:
FAMILY LAW (DIVORCE) ACT 1996
C (J A) V C (M E) 1979 DIVORCE REGISTRY NO 14573
FAMILY LAW ACT 1995 S29
MCG (J) V W (O) 2000 1 ILRM 107
W V W 1993 2 IR 476
D (K E) V C (M) UNREP CARROLL 26.9.1984 1984/6/1912
T V T 1983 IR 29
JOYCE, RE: CORBETT V FAGAN 1946 IR 277
REVENUE COMMISSIONERS V SHAW 1982 ILRM 433
JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S2(1)(f)
JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S8
JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S11
JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S10(1)(a)(ii)
JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S12
JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S13
JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S15
JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S14
JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S15(a)
ARMITAGE V AG 1966 P135
DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5(1)
CONSTITUTION ART 15.2
DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5
FAMILY LAW ACT 1995 S30(3)
HYNES - O'SULLIVAN V O'DRISCOLL 1988 IR 436
VONE SECURITIES V COOKE 1979 IR 59
L V L 1992 2 IR 101
TUOHY V COURTNEY 1994 3 IR 1
D (K) (OTHERWISE C) V C (N) 1985 IR 697
INDYKA V INDYKA 1969 IAC 33
TREATY ON EUROPEAN UNION 1992 ART K3
KELLY ON THE IRISH CONSTITUTION 3ED 13
IRISH TRUIST BANK V CENTRAL BANK OF IRELAND 1976 ILRM 50
WALSH V PRESIDENT OF CIRCUIT COURT & DPP 1 ILRM 325
BANK OF IRELAND V CAFFIN 1971 IR 123
Synopsis:
FAMILY LAW
Domicile
Divorce - Residence - Marriage - Recognition of foreign divorce - Whether parties domiciled in England at time of divorce - Whether divorce valid - Family Law Act, 1995 - Family Law (Divorce) Act, 1996 - Judicial Separation and Family Law Reform Act, 1989 (1999/120M & 1998/143M - Kinlen J - 9/3/01) [2001] 2 IR 399
C(ME) v C(JA)
The proceedings concerned the validity of a divorce decree granted in England. M.E.C. and J.A.C. were lawfully married to each other in Ireland and moved to England. A divorce was obtained in England in 1980 and subsequently J.A.C. married J.O.C. An issue as to whether the divorce obtained was valid. Kinlen J held although both M.E.C. and J.A.C. were resident in England they were not domiciled there. The divorce was not entitled to recognition within the State and the court issued the appropriate orders.
Mr. Justice Kinlen delivered the 9th day of March, 2001.
These are extraordinary cases. There are two sets of proceedings before this Court. The background to these proceedings is as follows:
M.E.C. and J.A.C. were lawfully married to each other on the 18th day of May, 1968 in Sligo. In or about 1968 they moved to England where three children of the marriage were born all of whom have achieved their majority. However, one of the issue suffers from diabetes and has multiple sclerosis and it has emerged that he is a dependent member of the family within the meaning of the Family Law (Divorce) Act, 1996. The dependent child is J.A.C junior.
The Applicant separated from the Respondent about October 1979, when she returned with the three children to reside in Ireland.
Pursuant to proceedings instituted by the Respondent in an English Divorce County Court entitled "In the Divorce Registry No. 14573of 1979 Between J.A.C. Petitioner -v- M.E.C., Respondent"a consent order was made by the Court on the 22nd day of May 1980 whereby the marriage between the Applicant and the Respondent was dissolved. On the 6th day of October 1983 in the said English proceedings a further consent order was made whereby it was ordered that the Petitioner should pay the Respondent a lump sum of £24,000 Stg. in full and final settlement within six months of the date of this order.
There was also payment to be made in respect of each of the three children at the rate of £520 per annum, payable weekly in advance, per child, until each child would attain the age of 18 years of shall cease full time education. In pursuance of this Court Order, the Respondent paid the Applicant the sums due and owing.
At the time of their marriage in Sligo both parties gave English addresses as the place of their normal residence.
The Respondent married J.O.C. in or around 1989. Both the Respondent and the said J.O.C. have separated and the said J.O.C has instituted proceedings against the Respondent. The Applicant M.E.C. seeks inter alia a declaration pursuant to Section 29 of the Family Law Act, 1995that the validity of a divorce granted by an English Divorce County Court in respect of the marriage between the Applicant and the Respondent is not entitled to recognition within the State. Further relief's are sought from the Court in the event that such a declaration is made.
This Court directed that as a preliminary matter, the Court should determine the issues as to whether the parties in the proceedings were domiciled in England at the time of the divorce, or, if, one of them was domiciled there.
Both the Applicant, M.E.C and the Respondent originated from more or less the same area. The Applicant went to England. She trained as a nurse. After she got full qualification (but she was not trained as a state registered nurse) she remained living and working in London. She has stated in evidence that it was her intention to continue to nursing in England for a while but eventually to return to Ireland. She returned home to Sligo each year to visit her friends. During a visit home in 1965 the Applicant and the Respondent resumed their relationship, as a result the Respondent moved to England. After their marriage they got into the business of pub management.
In 1972 the Respondent bought 16 acres of land in County Sligo, near his father's farm and he put cattle on it. His father looked after the cattle in his absence. The Respondent returned home to Ireland at least three times a year, stocking the land and having a family holiday. In 1976 the Respondent bought a licensed premises and 30 acres in County Sligo. A manager was employed to run the licence premises. The lands were set in conacre.
The Applicant states in her evidence that it was the parties long-term plan to come home and live in Ireland and bring up the children there. In relation to the licensed premises evidence was that it was their joint intention to run the pub and live on the premises.
The Applicant left the Respondent in 1979 and returned to her mother's house with her three children. As we have seen, the marriage was dissolved on the 22nd day of May 1980 by the English Divorce County Court. On the 6th day of October 1983 a further consent order was made by which she agreed to accept as full and final settlement £24,000 Stg.
In 1984 she returned to her parents and in 1986 she bought her own house in County Sligo with the proceeds from the financial settlement. The parties did not purchase any property in England in the time of their marriage. They never had an English passport but always travelled on an Irish passport. The Respondent was an active member of the Sligo Men's Association in London and for a period was its chairman.
The (Notice Party) Applicant had been divorced and had three children from a previous marriage, the youngest of whom, was born in 1972. From 1979 the Respondent continued living in London with the (Notice Party) Applicant. He took over the lease of another licensed premises shortly after the divorce as the brewery put he managed was burnt down. In 1992 the Respondent was notified that the brewery wished to terminate his lease on the second licensed premises. The Respondent was offered a number of choices of other licensed premises by the brewery but the Respondent did not take up any of them. He chose instead to return to Ireland. In 1994 the Respondent returned to Ireland with the (Notice Party) Applicant.
The Respondent sold the pub in Sligo in 1988. His evidence was that the manager retired and he had difficulty in finding a replacement. He also said that the (Notice Party) Applicant had indicated that she would not live there. He also sold the plot of land near his fathers farm to finance the divorce settlement already recited. He bought a derelict house on 15½ acres of land in 1986 which he intended to occupy as a home. He moved into this house with the (Notice Party) Applicant in 1993. In which 1989 he bought land (approximately 12 acres in Cavan (which is where the (Notice Party) Applicant originated) which he gave her as a wedding present. The Respondent also bought, at some stage during this period, a further 15 actes of land in Sligo near his own home, for the purpose of farming. He is presently a farmer. In evidence he has sworn that he always intended to return to Ireland.
The (Notice Party) Applicant and the Respondent own two houses in London and the Respondent owns another house in his own name. All of these houses are rented out. According to the (Notice Party) Applicant a house was bought in London in 1990 which was intended to be the family home. Two of the (Notice Party's) Applicant's children lived in the house from 1990 as the now (Notice Party) Applicant had sold her house to avail of a local government grant.
The (Notice Party) Applicant and the Respondent lived at the premises for a six month period after leaving the second licensed premises and before returning to Ireland.
The...
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