M.R v B.M.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Henry Abbott |
| Judgment Date | 03 June 2011 |
| Neutral Citation | [2011] IEHC 558 |
| Judgment citation (vLex) | [2011] 6 JIC 0301 |
| Court | High Court |
| Date | 03 June 2011 |
[2011] IEHC 558
THE HIGH COURT
BETWEEN
AND
FAMILY LAW ACT 1995
FAMILY LAW (DIVORCE) ACT 1996 S5(1)
RSC O.29
RSC O.70 r75
L (E) v K (S) UNREP ABBOTT 13.7.2012 2012 IEHC 617
RSC O.29 r3
O FLOINN PRACTICE & PROCEDURE IN THE SUPERIOR COURTS 1996 230
Family Law – The Family Law (Divorce) Act 1996 – 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 the marriage, divorce, judicial separation, and remarriage between the applicant and the respondent in different jurisdictions, the applicant filed for a decree of divorce in the Irish Court in respect of their first marriage in 1970 wherein the respondent was permitted to counter claim for a decree of nullity regarding their marriage in 1970. In consequent thereof, the applicant wife sought an order pursuant to o. 29 of the Rules of the Superior Courts for directing the respondent husband to provide security for the costs in the nullity proceedings. The applicant 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 application under o. 29 of the Rules of the Superior Courts would be granted. The Court observed that there was substantial delay since the initiation of the proceedings of divorce by the respondent and the respondent never asked for the relief of decree of nullity of the marriage instead kept on asserting the validity of the marriage. The Court found that o. 70, r. 75 of the Rule of the Superior Courts had no applicability in the case as the applicant possessed modest means of income.
1. The applicant wife and the respondent husband were married to one another on the 30 th October, 1970, in the then Federal Republic of Germany. The parties went through a divorce procedure in the Dominican Republic in 1998, the validity of same in this jurisdiction is being challenged by the applicant. On the 19 th March, 1991, an order was made in the Circuit Court in this jurisdiction for judicial separation of the parties. The respondent has since been married, divorced and remarried in other jurisdictions and is currently a citizen of Israel and resides therein. By special summons dated the 28 th February, 2007, the applicant claims in this Court an order pursuant to s.5(1) of the 1996 Act for a decree of divorce. Initially, in the respondent's answer to the applicant's claim in his replying affidavit of the 21 st January, 2008, the respondent asserted as valid within the jurisdiction of the Courts of Ireland the divorce from the applicant obtained by him in the Dominican Republic on the 5 th May, 1988. Subsequently, after his solicitors came off record, the respondent was permitted by the court to amend his defence and counterclaim for a decree of nullity against the applicant in respect of their marriage in 1970, in respect of which the applicant claims a decree of divorce.
2. By notice of motion herein the applicant sought an order pursuant to O.29 of the Rules of the Superior Courts directing the respondent (petitioner) to provide security for the applicant's costs in relation to the nullity proceedings which will be heard prior to the divorce proceedings and for further or other relief. Under this general application for relief the court ruled that such further relief was to include a claim for an alternative order pursuant to O. 70, r. 75 of the Rules of the Superior Courts directing the petitioner/respondent to pay to the applicant up to the date of the application and her further costs de die in diem to the trial of the action.
3. The grounds upon which the applicant relied for security for costs were as follows:-
The petitioner/respondent resides outside the jurisdiction in Israel.
The petitioner has a satisfactory defence to the claim for nullity on the grounds that the petitioner is estopped from denying the marriage by reason of his submission to the jurisdiction of the Irish Courts with the best legal advice available, and the granting of a decree of judicial separation and further on the alternative, claiming as a defence in the divorce proceedings herein the recognition of the alleged divorce in the Dominican Republic quite apart from any defences on the merits in relation the nullity claim itself which claims lack of capacity on the part of the petitioner/respondent.
4. The hearing of the application took place on the 28 th and 29 th March, 2011. The petitioner was personally represented and argued what he described were thirteen points against the making of an order for security for costs. These may be summarised in relation to the most arguable points as follows:-
The cases decided by courts in this area generally related to the protection of defendants from spurious or fairly plainly unmeritorious claims by impecunious persons not ordinarily resident in the State and did not relate to nullity proceedings which were proceedings in relation to the status of persons.
The applicant had taken the benefit of the divorce in the Dominican Republic and she has been paid maintenance in consequence thereof.
The...
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