MY v AA

• Jurisdiction: Ireland
• Judge: Ms. Justice Bronagh O'Hanlon
• Judgment Date: 25 January 2017
• Neutral Citation: [2017] IEHC 227
• Court: High Court
• Docket Number: Record No: 2015/9 M
• Date: 25 January 2017

[2017] IEHC 227

THE HIGH COURT

FAMILY LAW

O'Hanlon J.

Record No: 2015/9 M

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 1996

IN THE MATTER OF THE FAMILY LAW ACT 1995

IN THE MATTER OF THE DOMICILE AND RECOGNITION OF FOREIGN DIVORCES ACT 1986

BETWEEN

M.Y.

APPLICANT

AND

A.A.

RESPONDENT

Family – S. 29 (d) of the Family Law Act 1995 – The Family Law (Divorce) Act 1996 – The Domicile and Recognition of Foreign Divorces Act 1986 – Validity of foreign divorce – Post divorce relief

Facts: The applicant sought an order under s. 29 (d) of the Family Law Act 1995 that the divorce obtained by the respondent in foreign country was invalid. The applicant also sought an order pursuant to s. 5(1) of the Family Law (Divorce) Act 1996 and other ancillary orders. The applicant claimed that the recognition of the divorce under s. 5(1) of the Domicile and Recognition of Foreign Divorces Act 1986 was confined to divorces granted by a court in proceedings for the divorce. The applicant further contended that since the foreign court had merely confirmed the prior divorce pronounced by the respondent by way of talaq, it was not a divorce in judicial term, and thus, it should not be recognized in Ireland. The respondent submitted that a broad and purposive interpretation should be given to s. 5(1) of the 1986 Act and divorce by the foreign court should be recognised.

Ms. Justice Bronagh O'Hanlon held that the divorce in the foreign court was valid and duly "granted" under s. 5(1) of the 1986 Act. The Court held that the said divorce was entitled to recognition in the State of Ireland as it would entitle the applicant to claim certain reliefs post foreign divorce. The Court held that since the applicant was habitually resident in Ireland, she could ask for reliefs post foreign divorce. The Court took into account the financial status of the parties and granted orders to the effect that the respondent would pay a certain amount for the maintenance of the applicant and the three dependent children as well. The Court also held that the respondent would pay a lump sum amount to the applicant as the respondent was in possession of several properties in the foreign country. The Court also granted an order for the transfer of the property situated in the foreign court in the name of the applicant, the proceeds of which would be applied by the applicant for purchasing a suitable accommodation for herself and her children in Ireland.

JUDGMENT of Ms. Justice Bronagh O'Hanlon delivered on the 25th day of January, 2017

1 This case came before the Court by way of special summons seeking a decree of divorce and ancillary orders issued by the applicant on 3rd February, 2015.

2 The applicant seeks the reliefs set out in her amended special summons dated 5th November, 2015 as follows:

• An Order pursuant to section 29(d) of the Family Law Act 1995 that the divorce obtained by the respondent on 26th April, 2015 in Libya is invalid and not entitled to recognition and other declaratory relief regarding the validity or otherwise of the Libyan divorce and the circumstances surrounding how it was obtained.

• An Order pursuant to section 5(1) of the Family Law (Divorce) Act 1996 and ancillary orders under the 1996 Act.

• If necessary, Orders pursuant to Part III of the Family Law Act 1995.

3 The High Court (Abbott J.) granted an order on an ex parte basis granting the applicant leave to seek relief following a foreign divorce pursuant to Part III of the Family Law Act 1995 'in so far as the same did not provide for maintenance by lump sum or periodical payments, orders including in respect of the children of the parties or for a pension adjustment order in respect of the intended respondent's Irish pensions'. The date of that order was 15th June, 2015.

4 The respondent brought a motion seeking to strike out the proceedings on 17th June, 2015 on the basis that this Court did not have jurisdiction. The respondent later accepted that this motion was brought on the mistaken translation by him of one of the Libyan court documents.

5 The applicant brought a motion dated 5th November, 2015 seeking interim maintenance. On 11th March, 2016, this Court made an order directing the respondent to pay interim maintenance to the applicant on the basis of an agreed sum of €2,500 per month.

6 This Court facilitated a hearing for these proceedings over a period of seven days in October and November, 2016.

Summary of the Evidence

7 The applicant and the respondent were married on 5th May, 1996 at El-Berka, Benghazi, Libya. A certified translation of the marriage certificate was before the Court along with the original Libyan marriage certificate. The parties were both born in Libya and moved to Ireland in 1998. The applicant is a practicing Muslim. The respondent has stated that he ceased practicing as a Muslim five years ago. They met one another in medical school and made a joint decision to marry. They have five children. The eldest child is 18 years old (date of birth 26th November, 1998) and is at university in the UK and is being supported by the respondent. The second child is 16 years old (date of birth 3rd April, 2000) and resides in a boarding school in England and the respondent pays these fees. The other three children (dates of birth: 10th June, 2002, 21st October, 2004 and 18th November, 2008) live with their mother and attend schools in Ireland. All of the children are dependent within the meaning of the Family Law Acts. All of the children were born in Ireland and are Irish citizens.

8 The parties first separated in 2008, and finally in 2009 and that is not disputed. The applicant gave evidence that the marriage was not a happy one and she was not permitted by the respondent to be independent. She alleged that the respondent was generally controlling and she described him as going into 'tirades of rage'.

9 The respondent pronounced Talaq divorce on three occasions; December, 2008, December, 2009 and 19th January, 2015. The Arabic term 'talaq' literally translates to 'I divorce you'. The applicant accepted in evidence that she understood this Arabic tradition by which the respondent said 'I divorce you' to her. The applicant gave evidence that the third Talaq could not be valid within the Islamic tradition as she did not hear it and it was not pronounced in front of her as the purported pronouncement was over the phone from Ireland while she was in Libya. The applicant asserts that, to be a valid Talaq, the third pronouncement would have had to be in her presence. No expert evidence was provided by either party in this case in relation to what constitutes a valid talaq divorce although this third talaq was accepted by the Libyan Court after it heard evidence from the respondent.

10 The respondent asserts that after the third pronouncement of Talaq he issued the aforesaid proceedings before the Libyan Court on 25th January, 2015. The respondent contends that there were discussions in relation to divorce proceedings in Libya from at least December 2014. The respondent further contends that the applicant was served with the Libyan divorce proceedings on 2nd February, 2015. There was a legal procedure in the Libyan Court to confirm the Talaq divorce on 3rd February, 2015 and on further dates including 8th March, 2015 and 19th April, 2015. On foot of the Libyan divorce, the Libyan Court granted the applicant a right to reside in a property at A. Street, Libya for her life subject to her not remarrying and that property was valued by the applicant at €390,000. The applicant stated that she did not seek this right of residency. The applicant gave evidence that she was under intense pressure and that she was in fear of militants active at that time in Libya. The applicant was of the view that the respondent was opportunistic and used the civil unrest situation in Libya to his advantage to obtain a divorce there and prevent her from obtaining a divorce in Ireland. She stated that she did not agree to what was put before the Libyan Court and that her father signed the 'memorandum of agreement' without her consent. The applicant gave evidence that her father felt under 'cultural pressure' to agree.

11 The applicant gave evidence that she was subjected to threats of violence and intimidation towards her and the children during this period by members of the respondent's family in order to force her to agree to this Libyan divorce. She stated that she made a complaint to the police in Libya because of a threat to her life from the respondent's brother although nothing more came of that report. She stated that she wanted to alert the police in case something happened to her although she stated that she did not think that they had the power to do anything and they were under a lot of pressure as it was a time of conflict in Libya. It was put to the applicant in cross examination that her story in the police report was different to the account in her affidavits before this Court. She explained that she was answering different questions in the police station to that content in the affidavits.

12 The issue of the dowry was also raised. She was paid 48,750 Libyan Dinars around the time of the Libyan proceedings which is the equivalent of approximately €32,500 as of current exchange rates. The applicant accepted that she received the second portion of her dowry although she denied that this meant that she had agreed to the divorce. She contended and this was not disputed that many women receive that portion of the dowry when they are happily married.

13 She stated that she left Libya and she issued divorce proceedings in Ireland on 3rd February, 2015. She contends that she commenced divorce proceedings in Ireland prior to the respondent's commencement of proceedings in Libya. She outlined that she then returned to Libya to collect the children and then applied for...