McG v DW (Divorce: Recognition)

• Jurisdiction: Ireland
• Judgment Date: 31 March 2000
• Date: 31 March 2000
• Docket Number: [S.C. No. 165 of 1999]
• Court: Supreme Court

Supreme Court

[S.C. No. 165 of 1999]

G. McG. v. D.W. (No. 2) (Joinder of Attorney General)

G. McG.

Petitioner

and

D.W., Respondent, and A.R., Notice Party (No. 2) (Joinder of Attorney General)

Cases mentioned in this report:-

Ainsworth v. Wilding [1896] 1 Ch. 673.

Ampthill Peerage [1977] A.C. 547; [1976] 2 W.L.R. 777; [1976] 2 All E.R. 411.

The Attorney General v. Open Door Counselling Ltd. (No. 2) [1994] 2 I.R. 333; [1994] 1 I.L.R.M. 256.

Belville Holdings Ltd. v. Revenue Commissions [1994] 1 I.L.R.M. 29; [1993] I.T.R. 528.

Director of Public Prosecutions v. Sheedy [2000] 2 I.R. 184.

G. McG. v. D.W. (Divorce: Recognition) [2000] 1 I.R. 96.

In re Swire (1885) 30 Ch. D. 239, 53 L.T. 205.

W. v. W. [1993] 2 I.R. 476; [1993] I.T.R. 473.

Practice and procedure - Parties - Joinder - Jurisdiction - Final order - Family law - Finality of litigation - Whether Attorney General may be added as notice party where judgment has been delivered, order perfected and no appeal taken - Family Law Act, 1995 (No. 26), s. 29.

Appeal from the High Court.

The facts have been summarised in the headnote and are fully set out in the judgments of Denham, Murphy and Murray JJ., infra.

By notice of appeal dated the 15th July, 1999, the Attorney General appealed the order of the High Court (McGuinness J.) made on the 18th June, 1999, refusing his application to be joined as a notice party in the proceedings.

The matter was heard by the Supreme Court (Denham, Murphy, Barron, Murray and Hardiman JJ.) on the 21st February, 2000.

The High Court (McGuinness J.) granted an order and delivered a reserved judgment in proceedings which extended the common law on the recognition of foreign divorces: see [2000] 1 I.R. 96.

The Attorney General did not learn of the case until after the judgment was delivered. It was a family law case heard in camera.The Attorney General then sought to be joined as a notice party. The Attorney General's purpose was, ultimately, to appeal the decision of the High Court to the Supreme Court and indicated his concern as to the state of the common law in relation to the recognition of foreign divorces in light of the judgment of the High Court. All the parties to the action opposed the motion.

The High Court refused the relief sought and the Attorney General appealed to the Supreme Court.

Held by the Supreme Court (Denham, Murphy, Barron, Murray and Hardiman JJ.), in dismissing the appeal, 1, that, whilst the Family Law Act, 1995, allowed for the joining of the Attorney General as a party to proceedings relating to the validity of a marriage, there were, after the judgment and order were given and no appeal taken, no proceedings in being to which to join the Attorney General.

2. That in both types of order envisaged, one where the Attorney General was a party and the other where Attorney General was not, the Act of 1995 envisaged the order as a final order.

3. That it was only in special and unusual circumstances and in the interests of justice that an amendment of a final order might be made by the court. Those criteria were not met in this case.

Belville Holdings Ltd. v. Revenue Commissions [1994] 1 I.L.R.M. 29; The Attorney General v. Open Door Counselling Ltd. (No. 2)[1994] 2 I.R. 333 followed.

4. That the Family Law Act, 1995, did not provide a legal basis for the Attorney General's motion, and that the Supreme Court had no jurisdiction to re-open the proceedings.

5. That the declaration of the court under s. 29 of the Act of 1995 was binding on the State only if the Attorney General had been made a party to the proceedings.

Cur. adv. vult.

Denham J. 31st March, 2000

This is an appeal by the Attorney General against the judgment and order of the High Court (McGuinness J.) delivered on the 18th June, 1999, and perfected on the 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

This case commenced as a petition of nullity of marriage. The basic facts were set out by McGuinness J. [2000] 1 I.R. 96 at p. 99 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 Síochána in connection with a possible charge of bigamy.

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

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.

When the proceedings came on for hearing before this court, counsel for the petitioner 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. Counsel for the notice party stressed that the notice party had been shocked and distressed by being interviewed by the Garda Síochána 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.

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 s. 29(1)(d) or (e) of the Family Law Act, 1995, in regard to the recognition of the 1985 English divorce of the petitioner and the notice party."

McGuinness J. cited s. 29(1) of the Family Law Act, 1995, and 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 legal submissions.

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 cease forthwith.

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

The learned trial judge reviewed the law on the recognition of foreign divorces. Of counsels argument she said at p. 104:-

"Counsel for the notice party, (with support from counsel for the petitioner) 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, counsel for the petitioner submitted that this court should now consider further development of the common law recognition rule.

There is no doubt that counsel for the petitioner 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. 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."

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

"It is of interest to note that the same statutory bases are provided in the Family Law Act, 1995, for the court's exercise of its jurisdiction to make declarations as to marital status (s. 29) and to grant decrees of nullity (s. 39). This demonstrates a clear policy of the legislature that jurisdiction in matrimonial matters is not limited to a basis of domicile, but extends to a basis of ordinary residence for one year prior to the issue of the relevant...