MEC v JAC (Divorce: Recognition)

• Jurisdiction: Ireland
• Judgment Date: 09 March 2001
• Date: 09 March 2001
• Docket Number: [1999 120 M]
• Court: High Court

M.E.C. v. J.A.C. (Divorce: Recognition)

M.E.C.

Applicant

and

, J.A.C., Respondent and J.O.C., Notice Party and Attorney General, Notice Party

M.E.C. v. J.A.C. (Divorce: Recognition)

and J.O.C.

Applicant

and

, J.A.C., Respondent and Attorney General, Notice Party

[1999 120 M]

[1998 143 M](Divorce: Recognition)

High Court

Family law - Foreign divorce - Recognition - Domicile - Residence - Whether foreign decree obtained by applicant and respondent entitled to recognition in Ireland - Whether subsequent marriage between applicant and notice party valid - Whether Irish courts can extend recognition to foreign decree if one or both spouses were resident but not domiciled at time of institution of divorce proceedings - Domicile and Recognition of Foreign Divorces Act, 1986 (No. 24), s. 5.

The applicant and respondent were married in Sligo in 1968. The marriage was dissolved in an English County Court in 1980. The respondent married the notice party in 1989. The applicant sought a declaration that the validity of the divorce granted by the English court was not entitled to recognition within the State on the basis that neither party was domiciled there at the time. The Attorney General was joined to the proceedings and argued against the proposition that the Irish courts should extend recognition to a decree of divorce granted by the courts of a country in which one or both of the spouses had been resident, but not domiciled, prior to and at the time of the institution of the divorce proceedings.

Held by the High Court (Kinlen J.), in granting the relief sought, 1, that the courts of Ireland would recognise a decree of divorce if either spouse was domiciled in the jurisdiction in which the divorce proceedings were instituted at the time those proceedings were instituted.

• W. v. W. [1993] 2 I.R. 476 applied. G. McG. v. D.W. (Divorce: Recognition)[2000] 1 I.R. 96 not followed.

2. That, as both the applicant and respondent were domiciled in Ireland at the time of the divorce, the decree could not be recognised in the State.

3. That any suggested radical change in the hitherto accepted law should more properly be effected by statute and the fact that the Oireachtas was slow to deal with many problems in the matrimonial field did not of itself give support to the court's jurisdiction to legislate.

Cases mentioned in this report:-

Armitage v. The Attorney General [1906] P. 135.

Bank of Ireland v. Caffin [1971] I.R. 123.

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

K.E.D. v. M.C. (Unreported, High Court, Carroll J., 26th September, 1984).

Hynes-O'Sullivan v. O'Driscoll [1988] I.R. 436.

Indyka v. Indyka [1969] I.A.C. 33; [1967] 3 W.L.R. 510; [1967] 2 All E.R. 689.

In re Joyce; Corbet v. Fagan [1946] I.R. 277; (1946) 80 I.L.T.R. 158.

Irish Trust Bank v. Central Bank of Ireland [1976] I.L.R.M. 50.

L. v. L. [1992] 2 I.R. 77.

G. McG. v. D.W. (Divorce: Recognition) [2000] 1 I.R. 96; [2000] 1 I.L.R.M. 107.

People (Attorney General) v. Ballins [1964] Ir. Jur. Rep. 14.

Revenue Commissioners v. Shaw [1982] I.L.R.M. 433.

T. v. T. [1983] I.R. 29; [1982] I.L.R.M. 217.

Tuohy v. Courtney [1994] 3 I.R. 1; [1994] 2 I.L.R.M. 503.

Vone Securities v. Cooke [1979] I.R. 59.

W. v. W. [1993] 2 I.R. 476; [1993] I.L.R.M. 294.

Walsh v. President of Circuit Court [1989] I.L.R.M. 325.

Motion on notice.

The relevant facts and the relevant statutory provisions have been summarised in the headnote and are fully set out in the judgment of Kinlen J., infra.

By special summons dated the 19th November, 1999, the applicant sought, inter alia, various declaratory reliefs, including a declaration pursuant to s. 29 of the Family Law Act, 1995, that the validity of a divorce granted by an English County Court in respect of the marriage between the applicant and the respondent is not entitled to recognition within the State.

By order of the court, the Attorney General was joined as a notice party and it was directed that the issue of the recognition of the divorce decree be dealt with as a preliminary issue. The application was heard by the High Court (Kinlen J.) on the 23rd and 24th November, 2000 and the 12th December, 2000.

Cur. adv. vult.

Kinlen J. 9th March, 2001

These are extraordinary cases. There are two sets of proceedings before this court. The background to these proceedings is as follows:

M.E.C. and J.A.C. were lawfully married to each other on the 18th May, 1968, in Sligo. In or about 1968, they moved to England where three children of the marriage were born all of whom have achieved their majority. However, one of the issue suffers from diabetes and has multiple sclerosis and it has emerged that he is a dependant member of the family within the meaning of the Family Law (Divorce) Act, 1996. The dependent child is J.A.C., junior.

The applicant separated from the respondent about October, 1979, when she returned with the three children to reside in Ireland.

Pursuant to proceedings instituted by the respondent in an English divorce County Court entitled "In the Divorce Registry No. 14573 of 1979 Between J.A.C., Petitioner v. M.E.C., Respondent" a consent order was made by the court on the 22nd May, 1980, whereby the marriage between the applicant and the respondent was dissolved. On the 6th October, 1983, in the said English proceedings a further consent order was made whereby it was ordered that the petitioner should pay the respondent a lump sum of £24,000 sterling in full and final settlement within six months of the date of this order.

There was also payment to be made in respect of each of the three children at the rate of £520 per annum, payable weekly in advance, per child, until each child would attain the age of 18 years or shall cease full time education. In pursuance of this court order, the respondent paid the applicant the sums due and owing.

At the time of their marriage in Sligo both parties gave English addresses as the place of their normal residence.

The respondent married J.O.C. in or around 1989. Both the respondent and the said J.O.C. have separated and the said J.O.C has instituted proceedings against the respondent. The applicant M.E.C., seeks,inter alia, a declaration pursuant to s. 29 of the Family Law Act, 1995, that the validity of a divorce granted by an English divorce county court in respect of the marriage between the applicant and the respondent is not entitled to recognition within the State. Further reliefs are sought from the court in the event that such a declaration is made.

This court directed that as a preliminary matter, the court should determine the issues as to whether the parties in the proceedings were domiciled in England at the time of the divorce, or, if, one of them was domiciled there.

Both the applicant, M.E.C. and the respondent originated from more or less the same area. The applicant went to England. She trained as a nurse. After she got full qualification (but she was not trained as a state registered nurse) she remained living and working in London. She has stated in evidence that it was her intention to continue nursing in England for a while but eventually to return to Ireland. She returned home to Sligo each year to visit her friends. During a visit home in 1965, the applicant and the respondent resumed their relationship, as a result the respondent moved to England. After their marriage they got into the business of pub management.

In 1972 the respondent bought 16 acres of land in County Sligo, near his father's farm and he put cattle on it. His father looked after the cattle in his absence. The respondent returned home to Ireland at least three times a year, stocking the land and having a family holiday. In 1976 the respondent bought a licensed premises and 30 acres in County Sligo. A manager was employed to run the licensed premises. The lands were set in conacre.

The applicant states in her evidence that it was the parties long-term plan to come home and live in Ireland and bring up the children there. In relation to the licensed premises the evidence was that it was their joint intention to run the pub and live on the premises.

The applicant left the respondent in 1979 and returned to her mother's house with her three children. As we have seen, the marriage was dissolved on the 22nd May, 1980, by the English divorce county court. On the 6th October, 1983, a further consent order was made by which she agreed to accept as full and final settlement £24,000 sterling.

In 1984 she returned to her parents, and in 1986 she bought her own house in County Sligo with the proceeds from the financial settlement. The parties did not purchase any property in England in the time of their marriage. They never had an English passport but always travelled on an Irish passport. The respondent was an active member of the Sligo Men's Association in London and for a period was its chairman.

The notice party J.O.C. had been divorced and had three children from a previous marriage, the youngest of whom, was born in 1972...