McG v DW (Divorce: Recognition)

• Jurisdiction: Ireland
• Judgment Date: 14 January 1999
• Date: 14 January 1999
• Docket Number: [1998 No. 40 M]
• Court: High Court

High Court

[1998 No. 40 M]

G. McG. v. D.W. (Divorce: Recognition)

G. McG.

Petitioner

and

D.W., Respondent and A.R. Notice Party

Cases mentioned in this report:-

C.M. v. T.M. (No. 2) [1990] 2 I.R. 52; [1991] I.L.R.M. 268.

Gaffney v. Gaffney [1975] I.R. 133.

Indyka v. Indyka [1969] 1 A.C. 33; [1967] P. 233; [1966] 3 W.L.R. 603; [1966] 3 All E.R. 583.

K.D. (C.) v. M.C. [1985] I.R. 697; [1987] I.L.R.M. 189.

L.B. v. H.B. (Unreported, High Court, Barrington J., 21st July, 1980)

Le Mesurier v. Le Mesurier [1895] A.C. 517.

Mayo-Perrott v. Mayo-Perrott [1958] I.R. 336.

Travers v. Holley [1953] P. 246; [1953] 3 W.L.R. 507; [1953] 2 All E.R. 794.

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

Family law - Foreign divorce - Recognition - Whether foreign divorce recognised when grounded upon spouse's ordinary residence of one year in foreign jurisdiction prior to date of application - Domicile and Recognition of Foreign Divorces Act, 1986 ( No. 24 ), s. 5 - Family Law Act, 1995 (No. 26), s. 29.

Matrimonial petition.

The facts of the case have been summarised in the headnote and are fully set out in the judgment of McGuinness J., infra.

By petition presented on the 4th March, 1998, the petitioner sought a decree that his marriage to the respondent was null and void. The citation was issued pursuant to an order of the Master of the High Court on the 10th March, 1998. By order of the Master of the High Court made on the 27th May, 1998, it was directed that the following issue be tried:-

"Did the petitioner at the date of the purported marriage between the petitioner and the respondent lack the capacity to enter into such a marriage by reason of a prior subsisting marriage between the petitioner and A.C. which, prior marriage had been solemnised on the 27th October, 1967?"

The matter came on for hearing in the High Court (McGuinness J.) on the 12th November, 1998, when it proceeded by way of an application pursuant to s. 29 of the Family Law Act, 1995.

Sections 29 (1)(d) and (e) of the Family Law Act, 1995, provide:-

"The court may, on application to it … make one or more of the following declarations in relation to a marriage, that is to say: …

• (d) a declaration that the validity of a divorce, annulment or legal separation obtained under the civil law of any other country or jurisdiction in respect of the marriage is entitled to recognition in the state,

  • (e) a declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in the State."

Section 5(1) of the Domicile and Recognition of Foreign Divorces Act, 1986, provides that any foreign divorce entered into after the 2nd October, 1986, shall be recognised "if granted in the country where either spouse is domiciled."

The petitioner and the notice party married in Dublin in 1967 and separated in 1978. In 1983, the notice party entered into a new relationship with a Mr. R. with whom she began to cohabit in England.

In 1984, the petitioner issued divorce proceedings in England basing his entitlement to do so on the fact of the notice party's residence for one year prior to the date of his divorce application. A decree absolute issued in February, 1985, in reliance upon which the petitioner married the respondent.

In 1998, the petitioner sought a decree of nullity in respect of his marriage to the respondent on the basis that at the time of the ceremony he lacked capacity to marry by virtue of his prior subsisting marriage to the notice party.

At the hearing of the action, all parties consented to the matter being dealt with as though it were an application pursuant to s. 29 of the Family Law Act, 1995.

Held by the High Court (McGuinness J.), in granting a declaration that the 1985 English divorce was valid and entitled to recognition in the State, 1, that the divorce granted to the petitioner and the notice party was properly within the jurisdiction of the English courts and therefore valid.

2. That, because the English divorce was granted prior to the 2nd October, 1986, common law principles governed the determination of whether or not it was capable of recognition under Irish law. Consequently, it was open to the court to consider the present policies of the courts and statutes and if necessary, modify the existing recognition rules based on the common domicile of spouses.

• W. v. W. [1993] 2 I.R. 476 followed.K.D. (C.) v. M.C. [1985] I.R. 697 distinguished.

3. That, a perusal of the provisions of s. 39(1) of the Family Law (Divorce) Act, 1996 and the Family Law Act, 1995, demonstrated a clear policy by the legislature that jurisdiction in matrimonial matters no longer be limited to a basis of domicile but extended to one of ordinary residence for one year prior to the date of the relevant application. Accordingly, it was reasonable and logical that the Irish courts extend the common law recognition of foreign divorces to a basis of ordinary residence for one year prior to the issue of proceedings.

Mayo-Perrott v. Mayo-Perrott [1958] I.R. 336;Indyka v. Indyka [1967] P. 233;W. v. W. [1993] 2 I.R. 476 considered.

Cur. adv. vult.

McGuinness J. 14th January, 1999

These proceedings came before the court in the form of a petition for a decree of nullity in which the petitioner claimed a declaration that his marriage to the respondent was null and void by reason of his prior subsisting marriage to the notice party.

The facts

The factual background may be briefly summarised. The petitioner, Mr. McG. married the notice party, Miss C., in a Roman Catholic Church in Dublin on the 27th October, 1967. Both parties were domiciled and resident in Ireland at the time of the marriage ceremony. There were two children of the marriage. The marriage irretrievably broke down in or about the year 1978 or 1979, and the parties separated. They entered into a deed of separation on the 11th April, 1979. As their financial and other circumstances changed over the next few years they entered into further agreements, amending the first separation deed. The final agreement was executed in 1984.

It appears that both parties embarked on new relationships. As far as the notice party was concerned, she formed a relationship with a Mr. R. and from in or about March, 1983, she resided continuously as man and wife with Mr. R. in England. On the 2nd October, 1983, she executed a deed poll in Dublin adopting the name of R.

On the 20th August, 1984, the petitioner issued divorce proceedings in England. In his divorce petition he based the jurisdiction of the English court on either the English domicile or alternatively the residence for more than one year in England of the notice party. For the purposes of the proceedings before this court it was not seriously submitted by any of the parties that the notice party had in fact acquired a domicile of choice in England in 1984; it was accepted that under English law the court had jurisdiction on account of her undoubted year's residence in that country.

The divorce was not contested and was granted on the ground of the notice party's adultery with Mr. R. The court approved the parties' proposed arrangements of the children of the marriage and the financial settlement. A decree absolute issued on the 12th February, 1985. Subsequent to the divorce the notice party married Mr. R. in England. There is one child of that marriage, now aged eleven.

The petitioner, Mr. McG., who was still domiciled and resident in Ireland, married the respondent, Miss W., on the 25th November, 1985, at Marylebone Registry Office in London. Miss W. was a British citizen domiciled in England. There are two children of this marriage born in 1987 and 1990. It appears that this marriage has also broken down and that the parties have reached an amicable settlement.

The proceedings

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...