MacA (C) v MacA (T)
| Jurisdiction | Ireland |
| Judge | Justice Barr |
| Judgment Date | 15 February 1988 |
| Neutral Citation | 1988 WJSC-HC 1471 |
| Court | High Court |
| Date | 15 February 1988 |
1988 WJSC-HC 1471
THE HIGH COURT
BETWEEN
AND
Citations:
GAFFNEY V GAFFNEY 1975 IR 133
JOYVE, RE: CORBETT V FAGAN 1946 IR 277
T V T 1983 IR 29, 1982 ILRM 217
HENDERSON V HENDERSON 1967 IR 77
HOLDEN V HOLDEN 1968 NI 7
SILLER, RE: HURLEY V WIMBUSH 1956 IR 344
ROWAN V ROWAN 1988 ILRM 1
DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S6(2)
DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5
DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5(1)
DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5(7)
DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S1
CONSTITUTION ART 40.1
CONSTITUTION ART 40.3
CONSTITUTION ART 41
MURPHY V AG 1982 IR 241
CLARKE, STATE V ROCHE 1987 ILRM 309
FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976 S5
MARRIED WOMEN'S STATUS ACT 1957 S12
DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT, 1986 S5
Synopsis:
DOMICIL
Husband
Marriage - Dissolution - Foreign decree - Recognition - English domicil of origin - Successful song writer - Tax problems - Irish residence intended for indefinite period - Failure of marriage - Departure from Ireland after six years - Decree granted after commencement of Domicile and Recognition of Foreign Divorces Act, 1986 - ~See~ Marriage, dissolution - (1986/500 Sp - Barr J. 15/2/88) - [1990] 2 I.R. 52
|M. v M.|
MARRIAGE
Dissolution
Foreign decree - Recognition - Domicil - Divorce proceedings - Commencement - Independent domicil of wife - The parties were United Kingdom subjects who were born in England and had English domicils of origin - They were married in London in 1975 and there were two children of the marriage who were born in England - The husband achieved international success as a writer of popular songs and his activities were centred on London and Los Angeles - The husband's success attracted a tax rate of 83% on a major part of his income and he found that he owed the Inland Revenue a considerable sum as income tax - In order to reduce his tax liability the husband, accompanied by his wife, left England and went to live in the United States of America for 18 months - In 1978 the husband wanted to return to England but the rate of tax there was still extremely high - The husband was advised that he should go to live in Ireland where he could claim the exemptions applicable to taxpayers whose incomes arose from their creative and original works - Early in 1979 the husband and his wife and children came to live in Ireland because of the tax advantages of doing so and because the husband and wife would be close to their families and friends in England and because the husband would be close to his business associates in London - The husband bought a substantial property in Ireland and he and his wife and family lived there until August, 1985, when the marriage failed and the husband went to live in England, where he remained - The wife and children remained in Ireland - The house in Ireland which the husband had bought was sold and the proceeds of the sale were divided between the parties - The wife bought another house in Ireland and she lived there with the children of the marriage - Soon after the family moved to Ireland the tax rates in England were reduced and subsequent reductions continued to be made - The husband filed a petition of divorce in England and notice of that petition was served on the wife on 15/8/86 - The wife failed to file an answer to the petition within the period allowed for that purpose; she applied for an extension of that period but her application was dismissed and she did not appeal against the dismissal - The husband, having obtained a decree of divorce ~nisi~, was granted a decree absolute on 3/3/87 in England - The domicil of the husband at the date of the commencement of the divorce proceedings, and the recognition by Irish courts of the divorce, became issues in proceedings brought by the wife against the husband in Ireland - The Act of 1986 came into operation of 2/10/86 - Section 5, sub-s. 1, of the Act states:- " For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled" - Sub- section 5 of s. 5 provides that the section shall apply to a "divorce granted after" the commencement of the Act - Sub-section 7 of s. 5 provides that "domiciled" means domiciled at the "date of the institution" of the proceedings for divorce - Held that, as the wife submitted that the husband had acquired a domicil of choice in Ireland at the date of the commencement of the divorce proceedings, the burden of proof lay on the wife to establish such acquisition : ~T. v. T.~ [1983] I.R. 29 considered - Held that there was an important distinction between setting up a home for an indefinite period in a particular place and forming the intention of residing permanently in such home: ~In re Sillar; Hurley v. Wimbush~ [1956] I.R. 344 considered - Held that a statement of Irish domicil made by the husband in a will executed by him in January, 1985, was not conclusive evidence of a change of domicil: ~Rowan v. Rowan~ [1988] ILRM 65 considered - Held that the husband had been motivated primarily by financial considerations when he came to live in Ireland with his family and that he had not abandoned his English domicil of origin or acquired a domicil of choice in Ireland at the date of the institution of the English divorce proceedings - Held that the English divorce decree would be recognised by the court since the decree had been granted after the commencement of the Act of 1986 in a country where the husband was domiciled at the date of the institution of the proceedings for divorce - Domicile and Recognition of Foreign Divorces Act, 1986, ss. 5, 6 - (1986/500 Sp - Barr J. - 15/2/88) - [1990] 2 I.R. 52
|M. v. M.|
Domicile - Reqiurements for displacement of a domicile of origin - the effect of the Domicile & Recognition of Foreign Divorces Act, 19 - The constitutional and validity of the common law rule as to the dependant domicile of a wife - (1986/500 Sp - Barr J. - 15.02.88)
|M v. M|
Justice Barr delivered on the 15th day of February, 1988 .
The facts of this case are not in serious controversy and I find them to be as follows. The plaintiff (wife) and the defendant (husband) were born in England and are United Kingdom subjects having an English domicile of origin. They were married in London on 12th September, 1975 and there are two children of the marriage - Daniel born on 26th October, 1976 and Laura born on 25th September, 1981. Both were born in England but are being brought up in Ireland. The husband is a leading song-writer and producer of pop records and he has enjoyed for some years outstanding international success. His professional activities are to a substantial degree centred on London and Los Angeles. The parties resided in London for about one year after the marriage. A major problem which the husband had then was his liability to U.K. income tax, the maximum rate of which was 83% in the pound at that time. A large part of his taxable annual income was within that bracket. He had unsuccessfully disputed his tax liability and there had been protracted litigation with the Inland Revenue; the end result being that a debt of about £300,000 was owing by him in 1976 in respect of arrears of tax and costs of litigation. His financial advisers recommended that he should take up residence outside the United Kingdom for at least one year to reduce his continuing tax burden and to facilitate him in discharging arrears of tax and costs to which I have referred. The husband and wife accepted that advice and went to the U.S.A. where they resided for about a year and a half. In 1978 the rates of income taxation in the United Kingdom were still as high as they had been in 1976 and this made it financially difficult for the husband to return to his own country. However, he was advised by his accountants that if he and his wife were to reside in Ireland and have their family home here, he would be in a position to avail of the special income tax concession offered in this State to creative artists. The making of a family home in Ireland also had two other important advantages over residing in the United States. First, both spouses would be within easy reach of family and friends in England and, secondly, the husband would have easy access to his professional associates in London. For these reasons he decided that they should take up residence in Ireland and the wife acquiesced in that intention. They came to this country in or about early 1979. Within a short time thereafter they purchased and renovated a substantial property near Kinsale called Scilly Cottage which became the family home. Until the breakdown of the marriage the wife and children resided there continuously as did the husband save for periodic visits on business to London and the United States which tended to become more frequent and prolonged from 1983 when the marriage first came under strain. The relationship appears to have reached a stage of irretrievable breakdown in or about August, 1985. The husband and wife parted at that time and since then he has been residing in England. The wife and children remained on in Ireland. Scilly Cottage was sold and eventually the parties agreed that the net proceeds of sale should be divided equally between them. The wife received approximately £90,000 from the sale and she has invested that sum in the purchase of another property near Kinsale where she has set up home with the children. She has stated in evidence, and I accept, that her intention is to continue residing with her children in Ireland for the foreseeable future. The husband gave evidence, which...
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