Y.N.R v M.N

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Higgins
• Judgment Date: 03 June 2005
• Neutral Citation: [2005] IEHC 335
• Date: 03 June 2005
• Court: High Court
• Docket Number: [2002 No. 13 M]

[2005] IEHC 335

THE HIGH COURT

[No. 123 M/2002]

R (Y N) v N (M)

BETWEEN/

Y.N.R.

APPLICANT

and

M.N.

RESPONDENT

and

IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

EEC REG 1347/2000 ART 11(2)

EEC REG 1347/2000 ART 17

RSC O.60

EUROPEAN COMMUNITIES (JUDGMENTS IN MATRIMONIAL MATTERS & MATTERS OF PARENTAL RESPONSIBILITY) REGS 2001 SI 472/2001

CONSTITUTION ART 41.3.2

TREATY OF ROME ART 234

CONSTITUTION ART 29.4.5

CONSTITUTION ART 29.4.6

TREATY OF AMSTERDAM PROTOCOL 4

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989

CONSTITUTION ART 40.1

TREATY OF ROME ART 249

TREATY OF ROME ART 189

CONSTITUTION ART 29.4.10

CROTTY v AN TAOISEACH 1987 IR 713

MURPHY v AG 1982 IR 241

HAMILTON v HAMILTON 1982 IR 466

W v SOMERS 1983 IR 122

BANK OF IRELAND v SMYTH 1995 2 IR 459

C (R) v C (C) 1997 1 IR 334 1997 1 ILRM 401 2002 FAM LJ 8

CONFLICT OF LAWS:

Jurisdiction

Matrimonial proceedings - Judicial separation - Seat of marriage - Forum - Locus standi - Court first seised - Whether Irish court has jurisdiction to hear matrimonial proceedings - Whether court can proceed with matrimonial proceedings when matrimonial proceedings in being in respect of same parties in another Member State - Council Regulation (EC) 1347/2000 - Council Regulation 2201/2003 - Constitution of Ireland 1937, Articles 29.4.5, 29.4.6, 29.4.10 and41.3.2 - Jurisdiction refused (2002/13M - O'Higgins J - 3/6/2005) [2005] IEHC 335; [2005] 4 IR 552

R (YN) v N(M)

1 Judgment of Mr. Justice O'Higgins delivered the 3rd day of June, 2005.

The Facts

2 The applicant and the respondent are French citizens. On 22nd June, 1978, the applicant and the respondent entered into a contract of marriage in the jurisdiction of the French courts. This contract established marriage settlement for the separate ownership of property as between them. On 26th June, 1978, M.N. and Y.R. were married in France. On the date of the marriage both parties were domiciled and habitually resident in France.

3 M.N. and Y.R. came to Ireland in 1998 and established their residence in County Cavan. In 2002 the applicant returned to France on a permanent basis and has resided there continuously since then.

4 On 22nd November, 2002 M.N. filed a petition for divorce on the grounds of fault pursuant to Article 242 of the French Code Civil in the Tribunal de Grand Instance in Strasbourg, France. The petition came before a family court judge on 26th November, 2002. On 23rd December, 2002, the French court fixed a hearing date in its proceedings for 4th February, 2003. On 23rd December, 2002, Y.R. the applicant instituted family proceedings by way of special summons in the High Court in Ireland.

5 When the hearing came before the French court on 4th February, 2003, both parties were legally represented. The applicant in these proceedings, Y.R., contested the jurisdiction of the French court to hear the case. The French court in its ruling dated 25th March, 2003, held it had jurisdiction to hear the proceedings under the preventions of Brussels II. That decision remains unappealed. On 26th June, 2003, the French court made a ruling of non-reconciliation and directed the second stage in the divorce proceedings to proceed. The French court has ordered an expert analysis of the financial affairs of the parties and has appointed an independent expert to discharge that function. In the French proceedings Y.R. has counterclaimed for divorce on the grounds of fault and sought a variety of financial orders from the French courts, including a payment of €100,000, while also reserving her position in relation to the expert audit being carried out by the French court in relation to financial matters.

6 By notice of motion dated 13th October, 2003, the respondent brought an application to this Court to declare that it has no jurisdiction in the matter in circumstances where the French Court has seisin of the case. Under the provisions of Article 11 (2) of the Regulation when the jurisdiction of the court first seised of the proceeding is established, "the court second seised shall decline jurisdiction in favour of that court". Article 17 provides that " The jurisdiction of the Member State of origin may not be reviewed... "

7 An order under the provisions of Order 60 of the Rules of the Superior Courts dated 23rd January, 2004 was served on behalf of the applicant on the Attorney General. In the Order 60 notice the applicant contends that the EC Regulation 1347/2000 and the 2001 Regulations are invalid and have no force in Ireland, having regard -

"to the provisions of the Constitution of Ireland, the method and manner in which the said Regulations were promulgated, that the Regulations contravene clear public policy of the State requiring the making of proper provision in the context of any judicial separation or dissolution of marriage and that the matrimonial property of the parties relevant to the making of proper provision within the State."

The applicant's submissions

8 1. The applicant contends that the reliance on Brussels II is constitutionally impermissible within the jurisdiction of the Courts of Ireland and/or ultra vires the lawful authority of the State. She contends that Brussels II unlawfully amends, fetters and/or restricts the 18th Amendment to the Constitution of Ireland promulgated by the People of Ireland in the form of Article 41.3.2. It is submitted that it is impermissible for regulations brought into force by a mere resolution of the Dáil on a Seanad to amend by implication the 18th Amendment to the Constitution wench was adopted by the people of Ireland following a referendum.

9 2 The applicant contends that because of the fact that the main seat of the marriage is within this jurisdiction that it is not permissible for respondent to proceed with the divorce petition in France.

10 3 The applicant submits that matters of interpretation of Community Law, arise which may require this Court to make a reference to the European Court of Justice for a preliminary ruling under Article 234 of the EC Treaty.

11 4. The applicant contends that even if Brussels II is constitutionally permissible, the French Court does not have the jurisdiction to determine the property right of the parties. It is submitted by the applicant that this Court is the only court that can consider the property consequence of the marital breakdown as governed by the provision of Irish law insofar as they relate to the lands, bank accounts and other property within the State. The applicant fears that the French Court may be under a misapprehension as to the extent of its powers in relation to the extent of its jurisdiction concerning the property rights of the parties.

12 The respondent and the notice parties take issue with the contentions of the applicant. By way of preliminary objection they contend that the applicant has no locus standi to argue the constitutional issues in that she has not established a sufficient basis in fact to enable her to do so. They also argue that the applicant should be precluded from arguing the constitutional issues by virtue of nature of her participation in the French proceedings. I will deal with these preliminary points first.

13 One of the main contentions of the applicant was because the main "seat" of the marriage was in Ireland it is not permissible for the respondent to pursue divorce proceedings in France. However in the affidavits before the Court the applicant has clearly established that the parties lived in Ireland most of the time for the greater period of the marriage and that the "seat of the marriage was in Ireland". In those circumstances she has in my view established a sufficient factual basis on which to argue her constitutional case. A second preliminary issue arises. The respondent and the notice party claim that the applicant is precluded from obtaining the relief sought by her in circumstances where the applicant has not only taken part in the French proceedings but she herself has counterclaimed for divorce and financial relief in this proceedings. Moreover in an affidavit dated the 18th November, 2003, authorised by her and sworn on her behalf the first sentence in para. states as follows:-

"In the premise my client is therefore willing to exceed to the respondents" petition for a divorce but only insofar as it relates to the question of divorce which is currently before the French Courts."

14 In my view it quite inconsistent not only to accede to a divorce petition in France but also to counterclaim for divorce in that country and at the same time to maintain in these proceedings that the granting of that petition is impermissible because the seat of the parties' marriage was in Ireland. She is in effect acceding to and counterclaiming for reliefs in the French Court while at the same time alleging that those reliefs are unconstitutional. In those circumstances, I consider that, the applicant is precluded from making the constitutional case that she wishes. Therefore I find it is unnecessary to decide on the merits of the case. However, in deference to the arguments made and for the purposes of expedition the event of a different conclusion being arrived at elsewhere I consider it appropriate to make some observations on the contentions of the applicant as set out above. -

15 (1) Regulation 1347/2000 ( Brussels II) was brought into force by a resolution of the Dáil and Seanad. It was argued that it amended by implication the provisions of Article 40 of the Constitution following a referendum. The applicant submitted that this was not permissible.

16 The provisions for divorce in the Irish Constitution are set out in Article 41.3.2 which was inserted following a referendum. The European Council Regulation...