M.R v P.R (Relief After Foreign Divorce)

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 05 July 2005
• Neutral Citation: [2005] IEHC 228
• Date: 05 July 2005
• Court: High Court
• Docket Number: [2003 No. 141M]

[2005] IEHC 228

THE HIGH COURT

[No: 141M/2003]

R (M) v R (P)

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996

BETWEEN

M.R.

APPLICANT

AND

P.R.

RESPONDENT

FAMILY LAW ACT 1995 S23(3)(A)

FAMILY LAW ACT 1995 S9

FAMILY LAW ACT 1995 S11

FAMILY LAW ACT 1995 S15(1)

FAMILY LAW ACT 1995 S29(1)

FAMILY LAW ACT 1995 S27(1)(B)

FAMILY LAW ACT 1995 S27(1)(E)

FAMILY LAW ACT 1995 S23(2)(A)

FAMILY LAW ACT 1995 S23(2)(B)

FAMILY LAW ACT 1995 S23(2)(C)

FAMILY LAW ACT 1995 S26

FAMILY LAW ACT 1995 S16(2)

FAMILY LAW ACT 1995 S16(2)(A)

FAMILY LAW ACT 1995 S16(2)(B)

FAMILY LAW ACT 1995 S16(2)(C)

FAMILY LAW ACT 1995 S16(2)(D)

FAMILY LAW ACT 1995 S16(2)(E)

FAMILY LAW ACT 1995 S16(2)(F)

FAMILY LAW ACT 1995 S16(2)(G)

FAMILY LAW ACT 1995 S16(2)(H)

FAMILY LAW ACT 1995 S16(2)(I)

FAMILY LAW ACT 1995 S16(2)(J)

FAMILY LAW ACT 1995 S16(2)(K)

FAMILY LAW ACT 1995 S16(2)(L)

RSC O.19 r28

MATRIMONIAL & FAMILY PROCEEDINGS ACT 1984 S13 (UK)

FAMILY LAW ACT 1995 S23

MATRIMONIAL & FAMILY PROCEEDINGS ACT 1984 S16 (UK)

MATRIMONIAL & FAMILY PROCEEDINGS ACT 1984 S18(3) (UK)

MATRIMONIAL CAUSES ACT 1973 (UK)

HOLMES v HOLMES 1989 FAM 47

FAMILY LAW (DIVORCE) ACT 1996 PART II

FAMILY LAW (DIVORCE) ACT 1996 S5(1)(c)

A v S 2003 1 FLR 431

FAMILY LAW ACT 1995 S26(A)

FAMILY LAW ACT 1995 S26(B)

FAMILY LAW ACT 1995 S26(C)

FAMILY LAW ACT 1995 S26(D)

FAMILY LAW ACT 1995 S26(E)

FAMILY LAW ACT 1995 S26(F)

FAMILY LAW ACT 1995 S26(G)

FAMILY LAW ACT 1995 S26(H)

FAMILY LAW ACT 1995 S26(I)

M (F) v M (T) UNREP MCKECHNIE 22.6.2004 2004/28/6636

FAMILY LAW ACT 1995 S9(1)(C)

LAMAGNI v LAMAGNI 1995 2 FLR 452

MATRIMONIAL & FAMILY PROCEEDINGS ACT 1984 S16(2)(1) (UK)

FAMILY LAW:

Foreign divorce

Relief after foreign divorce - Whether appropriate for court to intervene - Whether exceptional circumstances exist - Holmes v Holmes [1989] Fam 47 and A v S [2002] EWHC 1157; [2003] 1 FLR 431 followed - Whether failure to fully disclose assets in previous proceedings - Whether application should be made in country of divorce - Whether delay fatal to application - Lamagni v Lamagni [1995] 2 FLR 452 followed - Whether instrument of trust susceptible to property adjustment order - T-M (FJW) v T-M (CNR) [2004] IEHC 247 (Unrep, McKechnie J, 22/6/2004) followed - Family Law Act 1995 (No 26), ss 9, 11, 15(1), 16(2), 29(1), 23(2), 23(3)(a), 26, 27(1)(b), 29(1)(b) - Family Law (Divorce) Act 1996 (No 33), s 5(1)(c) - Relief granted (2003/141M - Quirke J - 5/7/2005) - [2006] 1 ILRM 513; [2005] IEHC 228

R (M) v R (P)

Facts: The parties obtained a decree of divorce under the civil law of Spain in 1996. The applicant was granted leave pursuant to the provisions of s. 23(3)(a) of the Family Law Act 1995 to seek a property adjustment order; a financial compensation order; and an order for the sale of property with an order providing for the disposal of the proceeds between the parties. The applicant claimed that proper provision had not been made for her by the respondent by the terms of a decree of divorce and that the means of the respondent were far greater than was represented to the applicant.

Held by Quirke J. in granting the relief sought that the relief sought to redress the apparent injustice which had resulted from the failure on the part of the respondent to disclose the full extent of his means and financial resources in 1996.

Reporter: R.W.

1 Judgment of Mr. Justice Quirke delivered on the 5th day of July 2005 .

2 By Order of this Court made on the 12th December, 2003, the applicant was granted leave pursuant to the provisions of s. 23 (3)(a) of the Family Law Act, 1995 (hereafter "the Act of 1995") to seek various reliefs including (i), property adjustment orders pursuant to s. 9 of the Act in favour of the applicant, (ii), a financial compensation order pursuant to s. 11 of the Act and (iii) an order for the sale of property pursuant to s. 15(1) of the Act with an order providing for the disposal of the proceeds between the parties.

3 The grounds relied upon by the applicant in support of her application for leave include the following:

4 1. That proper provision was not made for her by the respondent by the terms of a Decree of Divorce obtained by the parties on the 14th October, 1996, under the civil law of Spain. That Decree has been recognised as valid in this State pursuant to section 29 (1) of the Act of 1995

5 2. That because the respondent failed to make full disclosure in relation to his means and financial circumstances prior to and at the time of the granting of the Decree of Divorce on the 14th October, 1996, the applicant was misled into accepting a payment from the respondent's father of IR£50,000. That payment was represented to her as full and final provision for her upkeep, support and maintenance in accordance with the respondent's means at that time.

6 3. That, after the Decree of Divorce had issued, the applicant became aware that, at the time of the grant of the Decree of Divorce in 1996, the respondent was the principal beneficiary of a trust fund. That fund on the 31st January, 2001, had a value in excess of €2,900,000. In October, 1996 therefore, the means of the respondent were far greater than was represented to the applicant. The applicant now has few assets and no regular income. She claims that, having been misled, she now has no remedy under the civil law of Spain and entitled to the relief which she seeks within this jurisdiction.

JURISDICTION

7 In her grounding affidavit sworn on the 9th December, 2003, the applicant averred that she was "ordinarily resident in the State throughout the period of one year ending on the date on which the application pursuant to s. 23(3) was brought"

8 In the light of that evidence and in the light of evidence adduced by the applicant in earlier proceedings herein as to her residence at material times I am satisfied that the applicant has been resident within this State throughout the period of one year ending on the date on which the application pursuant to s. 23 (3) was made and that, accordingly, this Court had jurisdiction to grant leave and has jurisdiction pursuant to the provisions of section 27(1)(b) hear this application.

BACKGROUND.

9 On the 14th October, 1996, a Decree of Divorce was ordered by the Court of First Instance in Spain whereby the marriage between the applicant and the respondent was declared to be dissolved through divorce under the civil law of Spain.

10 The applicant had been married in the Registry Office in Cork within this jurisdiction on the 29th November, 1976. By Order of this Court dated 8th August, 2003, the divorce obtained on the 14th October, 1996, under the civil law of Spain was declared, (pursuant to the provisions of s. 29 (1)(b) and/or (e) of the Act of 1995), to be entitled to recognition as valid within this State.

11 The facts which gave rise to the marriage and to the divorce and to the recognition of the validity of the divorce are set out in full in the judgment of this Court delivered on the 8th August, 2003. It is therefore unnecessary to recite those facts but this court will refer to the facts as found from time to time.

RELEVANT LEGISLATIVE PROVISIONS

12 Section 23 of the Act of 1995 applies to a marriage which has been dissolved being a divorce (or legal separation) granted under the law of a country or jurisdiction other than the State which is entitled to recognition as valid within the State. It applies accordingly to the divorce which is the subject of these proceedings.

13 Subsection 2(a) of s. 23 provides as follows:

"Subject to the provisions of this Part, the court may, in relation to a marriage to which this section applies, on application to it in that behalf by either of the spouses concerned ... make any order under Part II ... (in this Act referred to as a relief order) that it could have made if the court had granted a decree of judicial separation in relation to the marriage".

14 Subsections (b) and (c) of s. 23(2) provide inter alia as follows;

15 (b) Part II shall apply and have effect in relation to relief orders and applications therefor as it applies and has effect in relation to orders under Part II and applications therefor with the modifications that—

16 (i) subsections (4) and (5) of section 8, section 10 (1) (c) and section 13 shall not apply in relation to a marriage that has been dissolved under the law of a country or jurisdiction other than the State,............... ....

17 (c) Section 16 shall apply in relation to a relief order subject to the modifications that—

18 (i) it shall be construed as including a requirement that the court should have regard to the duration of the marriage,

19 (ii) the reference in subsection (2) (k) to the forfeiture of the opportunity or possibility of acquiring any benefit shall be construed as a reference to such forfeiture by reason of the divorce or legal separation concerned, and

20 (iii) the reference in subsection (3) to proceedings shall be construed as a reference to the proceedings for the divorce concerned or, as the case may be, for the legal separation concerned.

21 Subsection (3), (a) of s. 23 provides as follows:

"An application shall not be made to the court by a person for a relief order unless, prior to the application, the court, on application to it ex parte in that behalf by that person, has by order granted leave for the making of the first-mentioned application and the court shall not grant such leave unless it considers that there is a substantial ground for so doing and a requirement specified in section 27 is satisfied."

22 The "requirement specified in section 27" is not relevant to these proceedings having regard to my earlier finding on jurisdiction.

23 Section 26 of the Act of...