McG (G) v W (D)

• Jurisdiction: Ireland
• Judge: Hon. Mrs. Justice Denham,Mr Justice Francis D Murphy,Mr Justice John L. Murray
• Judgment Date: 31 March 2000
• Neutral Citation: [2000] IESC 52
• Court: Supreme Court
• Date: 31 March 2000

[2000] IESC 52

THE SUPREME COURT

Denham, J.

Murphy, J.

Barron, J.

Murray, J.

Hardiman, J.

No. 165/1999

MCG (G) v. W (D)

BETWEEN

G. McG.

PETITIONER

AND

D.W.

RESPONDENT

AND

A.R.

NOTICE PARTY

Citations:

MCG (G) V W (D) 2000 1 ILRM 107

FAMILY LAW ACT 1995 S29(1)

W V W 1993 2 IR 476

LEGITIMACY DECLARATION (IRL) ACT 1868 S1

LEGITIMACY DECLARATION (IRL) ACT 1868 S6

FAMILY LAW ACT 1986 S59 (UK)

FAMILY LAW ACT 1986 S58 (UK)

AMPTHILL PEERAGE, THE 1977 AC 547

LAW REFORM COMMISSION REPORT ON RESTITUTION OF CONJUGAL RIGHTS JACTITATION OF MARRIAGE & RELATED MATTERS (LRC 6 - 1983)

FAMILY LAW ACT 1995 PART IV

FAMILY LAW ACT 1995 S29(8)

FAMILY LAW ACT 1995 S29(1)(d)

FAMILY LAW ACT 1995 S29(1)(e)

FAMILY LAW ACT 1995 S29(4)

FAMILY LAW ACT 1995 S29(5)

STATUS OF CHILDREN ACT 1987 S35

STATUS OF CHILDREN ACT 1987 S35(9)

BELVILLE HOLDINGS LTD V REVENUE COMMISSIONERS 1994 ILRM 29

AINSWORTH V WILDING 1896 1 CH 673

SWIRE, IN RE 30 CH D 239

DPP, PEOPLE V SHEEDY UNREP CCA 21.12.1999

SOCIETY FOR THE PROTECTION UNBORN CHILDREN (IRL) LTD (SPUC), AG V OPEN DOOR COUNSELLING LTD (NO 2) 1994 2 IR 333

FAMILY LAW ACT 1995 S30(1)

MATRIMONIAL CAUSES ACTS 1857 – 1873

SUPREME COURT JUDICATURE (CONSOLIDATION) ACT 1925 (UK)

LEGITIMACY DECLARATION (IRL) ACT 1868 S1

FAMILY LAW ACT 1995 S29(6)

Synopsis

Family Law

Joinder to proceedings; recognition of foreign divorce; judgment in rem; jurisdiction of court once final order made; High Court granted recognition to foreign divorce of petitioner; application by Attorney General to be joined to proceedings; appeal; Attorney General seeking to be joined to proceedings after judgment given by High Court, in order to appeal against the judgment; whether proceedings in High Court may continue without Attorney General; whether Attorney General must be served with copy of proceedings; whether Attorney General may choose not to participate in proceedings; whether Court has inherent jurisdiction to join Attorney General; whether discretion to notify Attorney General of the proceedings ought to have been exercised in favour of notification; whether proceedings binding on the parties; whether there was a proper legitimus contradictor; whether order made by High Court a final order; whether proceedings in being; whether order, if final, may be amended; s.29, Family Law Act, 1995.

Held: Court does not have jurisdiction to reopen proceedings; appeal dismissed.

McG. v. W. - Supreme Court: Denham J., Murphy J., Barron J., Murray J., Hardiman J. - 31/03/2000 - [2000] 4 IR 1 - [2000] 2 ILRM 451

The proceedings concerned the validity of a marriage and the recognition of a foreign divorce. McGuinness J had held that a divorce granted in England between the petitioner and the notice party was entitled to recognition in this State and that accordingly the marriage between the petitioner and respondent was a valid one. After judgment had been delivered in the High Court the Attorney General made an application to be joined as a party to the proceedings which was refused. The Attorney General appealed that refusal. Denham J held that it was not mandatory that the Attorney General be joined to the proceedings. A final order had been delivered so there were no proceedings in being. The appeal would be dismissed. Murphy J held that the order of the High Court was final and conclusive and disposed of the issues between the parties. There was no basis for an amendment of the order and the appeal would be dismissed. Murray J held that neither the High Court nor the Supreme Court could attribute to itself some inherent jurisdiction for the purpose of joining the Attorney General to the proceedings beyond those already set out in legislation. Accordingly the application of the Attorney General should be refused. Barron J and Hardiman J agreed with all three judgments.

1 Judgment of The Hon. Mrs. Justice Denhamdelivered the 31st day of March, 2000.

2 This is an appeal by the Attorney General against the judgment and order of the High Court (McGuinness J.) delivered on 18th June, 1999 and perfected on 24th June, 1999, whereby the High Court declined to join the Attorney General as a notice party. The single issue on this appeal is whether the Attorney General may be added as a notice party in circumstances where the High Court judgment has been delivered, the order perfected and no appeal taken by any of the parties. The issue is one of law.

Facts

3 This case commenced as a petition of nullity of marriage. The basic facts were set out by McGuinness J. in a judgment delivered on 14th January, 1999, where she stated:

"The Petitioner's nullity proceedings have followed a somewhat unusual course. The Citation was issued pursuant to an Order of the Master of the High Court made on the 10th March, 1998. It was served together with the Petition and Affidavit according to the Rules of the Superior Courts. An Answer dated the 6th July 1998 was filed by the Respondent which basically admitted the facts set out in the Petition. Application was then made to the Master for the customary order regarding time and mode of trial and the questions to be tried. No submissions either factual or legal were made before the Master in regard to the English divorce but it appears that the Master took the view that the English divorce was of no effect in Irish law and that the parties had committed bigamy. He refused the Order sought in the nullity proceedings and directed that the papers be sent to the Director of Public Prosecutions. I was informed by Counsel at the hearing before me that a number of persons, including the Notice Party (who was not then a party to the proceedings) had been interviewed by the Garda Siochana in connection with a possible charge of bigamy."

4 The Petitioner, who was not unnaturally somewhat concerned, appealed the Master's Order to this court. The learned Budd J. overturned the Master's Order and fixed time and mode of trial but felt that there no [sic] was no action open to him to take in regard to the transfer of the papers to the Director of Public Prosecutions.

5 Subsequently, in view of the fact that Mrs. R. had by that time a vital interest in the outcome of the proceedings, she was joined as a Notice Party by Order of Laffoy J. on the 23rd October, 1998.

6 When the proceedings came on for hearing before this court, Senior Counsel for the Petitioner, Mr. Durcan, submitted that, while the proceedings were in the form of a nullity petition, the real concern of the Petitioner was to ascertain his true marital status according to the law of this country. He was not urging the court to take any particular course with regard to the validity or otherwise of the English divorce, although he was, of course, concerned about the possibility of a criminal charge of bigamy. Senior Counsel for the Notice Party, Mr. O'Donnell stressed that the Notice Party had been shocked and distressed by being interviewed by the Garda Siochana and was most anxious to establish that her marriage to Mr. R. was a valid and legal marriage in this country, where she now resides.

7 All parties were in agreement that it would be preferable for the court to treat the petition for a declaration of nullity as if it were an application pursuant to section 29(l)(d) or (e) of the Family Law Act, 1995in regard to the recognition of the 1985 English divorce of the Petitioner and the Notice Party."

8 McGuinness J. cited s.29(l) of the Family Law Act, 1995and continued:

"It appeared to me that the basic question at issue in the proceedings was whether the 1985 English divorce was entitled to recognition in this State. From this the validity or otherwise of both subsequent marriages would flow. I accordingly agreed to proceed as suggested by Counsel for the parties and heard the relevant legalsubmissions.

At the conclusion of the hearing before me, since the matter was one of urgency due to the possible pending criminal proceedings, I held that the divorce between the Petitioner and the Notice Party was entitled to recognition in this State and that accordingly the marriage between the Petitioner and the Respondent was a valid marriage as was the marriage between the Notice Party and Mr. R. I also directed that any criminal proceedings or investigations directed thereto should ceaseforthwith.

Since the issues of law which arose in the proceedings were of general public importance I reserved the setting out of the reasons for mydecision."

9 The learned trial judge reviewed the law on the recognition of foreign divorces. Ofcounsels" argument she described:

"Senior counsel for the notice party, Mr. O'Donnell, (with support from Senior Counsel for the Petitioner, Mr. Durcan) submitted that since the decision of the Supreme Court in W. v. W. the constitutional, legal and factual context in this jurisdiction has dramatically changed. He described the changes in the law relating to divorce in Ireland as being of seismic proportions and stated that there had been a dramatic shift in public policy. Bearing in mind the principle enunciated by the Supreme Court in W. v. W.that common law rules are judge-made law and may be modified in the light of the present policy of the Court, Mr. O'Donnell submitted that this Court should now consider further development of the common law recognition rule.

There is no doubt that Mr. O'Donnell is correct in his submission that the law in regard to divorce in Ireland has been dramatically altered since 1993, firstly by the passing by Referendum on the Fifteenth Amendment to the Constitution and secondly by the enactment by the Oireachtas of the Family Law (Divorce) Act 1996(the Act of 1996). This State now itself possesses a divorce jurisdiction both under the new Article 41.3.2 of the Constitution and under the Act of 1996."

10 Of the Family Law Act, 1995, the learned trial judge held:

"It is of interest to note that the same statutory bases...