Mayo-Perrott v Mayo-Perrott

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1959
• Docket Number: [1955. No. 1183.]
• Date: 01 January 1959

Mayo-Perrott v. Mayo-Perrott

HELEN JOAN MAYO-PERROTT

Plaintiff

and

JOHN FREDERICK MAYO-PERROTT

Defendant.

[1955. No. 1183.]

Supreme Court.

Costs - Foreign judgment in personam - Decree of High Court of Justice in England for divorce a vinculo matrimonii and for costs thereof - Parties to suit domiciled in England - Defendant subsequently taking up residence in Ireland - Costs unpaid - Whether order for costs severable from decree of divorce - Whether judgment in so far as it awarded costs may be enforced by action in the Irish Courts - Public policy - Constitution of Ireland, Article 41, 3, 2 and 3.

The plaintiff, having obtained a decree for a divorce a vinculo matrimoniiin the High Court of Justice, Probate, Divorce and Admiralty Division (Divorce), in England together with the taxed costs of the proceedings against the defendant, and part of the costs being unpaid, sought judgment for the sum remaining unpaid in the High Court of Justice in Ireland, the defendant having come to reside within the jurisdiction of the Courts of Ireland, it was

Held by Murnaghan J., and affirmed by the Supreme Court (Maguire C.J. Lavery, Kingsmill Moore, O'Daly and Maguire JJ.) that the order for costs is not severable from the substantive order for divorce, and cannot be enforced by action in Ireland as creating a separate and independent cause of actionin personam.

Summary Summons.

The plaintiff obtained in the High Court of Justice, Probate, Divorce and Admiralty Division (Divorce), in England on the 13th July, 1953, a decree nisi for the dissolution of her marriage with the defendant which decree was made absolute on the 5th October, 1953. At the date of the hearing of the divorce proceedings both parties were domiciled in England. By the said decrees the defendant was ordered to pay to the plaintiff the sum of £328 17s. 0d., and the costs of the said proceedings. By two further orders dated respectively the 12th November, 1953, and the 14th January, 1954, had and made in the said proceedings the defendant was ordered to pay to the plaintiff a further sum of £50 4s. 0d. for costs. The said two sums were unpaid, except as to the sum of £39 19s. 7d., and there was due and owing to the plaintiff a sum of £339 1s. 5d. Subsequently the defendant came to reside in Ireland and the plaintiff brought proceedings in the High Court of Justice in Ireland for the recovery of the said sum of £339 1s. 5d., being that part of the taxed costs of the divorce proceedings which were unpaid.

From this judgment the plaintiff appealed to the Supreme court (2).

Cur. adv. vult.

Murnaghan J. :—

It would appear to be an established rule of private international law that a valid foreign judgment in personammay be enforced by an action for the amount due under it if the judgment is i, for a debt or definite sum of money, andii, final and conclusive. To this rule it is said that there is an exception, if the cause of action in respect of which the judgment was obtained, was of such a character that it would not have supported judicial proceedings in this country.

Prima facie the judgment upon which the present proceedings are based would come within the terms of the rule above stated, but it is argued on behalf of the defendant that the case falls within the said alleged exception.

By the joint effect of a decree by a Special Commissioner on the 13th July, 1953, of a certificate of making a decreenisi absolute dated the 5th October, 1953, and of an order for the payment of costs made on the 26th October, 1953, all made in a proceeding entitled "In the High Court of Justice Probate Divorce and Admiralty Division (Divorce) Between Helen Joan Mayo-Perrott, Petitioner, and John Frederick Mayo-Perrott, Respondent," the defendant was ordered to pay to the plaintiff the sum of £328 17s. 0d. the costs of the said proceedings. By the joint effect of two further orders dated respectively the 12th November, 1953, and the 14th January, 1954, had and made in the said proceeding the defendant was ordered to pay to the plaintiff the further sum of £50 4s. 0d. for costs. The said two sums are unpaid except as to the sum of £39 19s. 7d. for which sum the plaintiff must give credit to the defendant.

The said proceedings were instituted in the English Court by the plaintiff, seeking a divorce from the defendant, who was subject to, and who also submitted to, the jurisdiction of that Court. Similar proceedings could not have been maintained in this country.

The relevant provisions of the Constitution are Article 41, 3, 1, which provide:—"The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

2. No law shall be enacted providing for the grant of a dissolution of marriage.

3. 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 as dissolved."

The plaintiff's counsel relied on the provisions of Article 41, 3, 3, in support of his argument that the public policy of this country gives at least sufficient recognition to decrees of dissolution of marriage by foreign courts as to take this case out of the scope of the said exception contended for on behalf of the defendant. This paragraph does not lend itself to easy interpretation, but for the purposes of this judgment it is sufficient for me to say that looking at the said sub-article 3 as a whole I am of the opinion that the public policy of this country is clear in regard to divorce and is incompatible with the prevailing law in England in that regard.

A Court in Ireland can scarcely be expected to lend its active support to the enforcement of a law which it regards as repugnant to the Republic's own distinctive policy, and to this extent at least the said exception is in my opinion established.

It follows, therefore, that if the several orders for costs on which the present proceedings are based are part and parcel of the decree in the divorce proceeding and are not severable therefrom the plaintiff cannot succeed. The only authority cited to me in support of a submission that the said orders for costs were severable was Raulin v. Fischer(1), but this case is, in my opinion, clearly distinguishable on the facts. I have, on consideration, come to the conclusion that the said orders for costs are not severable from the substantive order of divorce, and cannot be enforced by action in Ireland as creating a separate and independent cause of action in personam.

Cur. adv. vult.

Maguire C.J. :—

At the outset it must be emphasised that the only question with which the Court is concerned is whether a judgment and decree of divorce a vinculo matrimonii in the High Court of Justice in England in so far as it awarded costs to the plaintiff may be enforced by an action in this country.

It is an established rule of private international law that a valid foreign judgment in personam may be enforced here if the judgment is (i), for a debt or definite sum of money; and (ii), final and conclusive, but not otherwise. To this rule there are exceptions, the first of which is:—An action cannot be maintained on a valid foreign judgment if the cause of action in respect of which the judgment was obtained was of such a character that it would not have supported an action in this country.

Article 41, 3, 2, of the Constitution provides as follows:—"No law may be enacted providing for the grant of a dissolution of marriage."

In view of this provision it, seems clear that the cause of

action in respect of which this judgment was obtained would not have supported an action in this country. Accordingly if this provision stood alone this judgment would appear to be within the exception to the rule quoted and to be unenforceable here. The appellant, however, contends that Article 41, 3, 3, qualifies the provision of Article 41, 3, 2, in such a way that this judgment is not within the exception.

Article 41, 3, 3, reads 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 the jurisdiction during the lifetime of the other party to the marriage so dissolved."

The sub-section is not easy to construe. The appellant contends that its effect is that a divorce a vinculo matrimoniiwhich is valid according to the domicile of the parties would be recognised as valid by our Courts and that the marriage so dissolved would be no longer a subsisting valid marriage under our law within the meaning of the sub-section. Consequently, it is submitted that either of the parties to the divorce proceedings could validly re-marry within this jurisdiction. If this view be correct it follows—or so it is submitted—that the decree of divorce being valid here the judgment for costs may be enforced by an order of the High Court.

In view of the declared object of the Article to protect the institution of marriage and the explicit provision of sub-s. 2, already referred to, that no law providing for the grant of a dissolution of marriage may be enacted by our legislature this seems to be a somewhat startling conclusion. The argument in support of it is firstly that the Article is only a re-enactment of the law here before 1922, and secondly that sub-s. 3 of the the Article is designed to achieve this result. The position before 1922 appears to have been that although the Courts in Ireland could not grant a divorce avinculo a petitioner who had obtained...