N (T) v N (P J)

• Jurisdiction: Ireland
• Judge: Justice MacKenzie
• Judgment Date: 29 July 1987
• Neutral Citation: 1988 WJSC-HC 1568
• Court: High Court
• Date: 29 July 1987
• Docket Number: No. 228/1985

N (T) v. N (P J)

BETWEEN

T. N.

PLAINTIFF

AND

P J N

DEFENDANT

1988 WJSC-HC 1568

No. 228/1985

THE HIGH COURT

Synopsis:

CONFLICT OF LAWS

Divorce

Foreign decree - Ancillary order - Enforcement - Former wife's maintenance - Capital sum - Foreign maintenance order - Enforcement of maintenance order in the State - Public policy - Parties to action not domiciled in country where divorce decree granted - The plaintiff wife married the defendant in London in November, 1972 - It would appear that the plaintiff and the defendant lived together in Ireland until February, 1982, when the plaintiff left Ireland with her children and went to live in England - On 6/3/84 an English court granted the plaintiff a divorce decree nisi and she obtained a decree absolute on 21/5/84 - The defendant husband entered an appearance in the divorce proceedings - On 6/11/84 the English court ordered the defendant to pay the plaintiff the sum of #50,000 sterling with interest thereon as maintenance - At the date of the divorce the Domicile and Foreign Divorces Act, 1986, had not been passed - The plaintiff issued a summary summons on 13/2/85 and claimed payment of the said sum by the defendant with the interest accrued thereon - The defendant (who relied on ~Mayo- Perrott v. Mayo-Perrott~ [1958] I.R. 336; 93 I.L.T.R. 185) contended that he was domiciled in Ireland at the date of the divorce decree, that the plaintiff's domicil at that date was Irish, and that the maintenance order was not severable from the divorce proceedings and, accordingly, was not enforceable in Ireland in view of the provisions of Article 41.3.3 of the Constitution - Held that the plaintiff was entitled to recover judgment from the defendant for the sum claimed by her with the interest accrued thereon: ~Mahon v. Mahon~ (Hamilton J. - 11/7/78) and ~Sachs v. Standard Chartered Bank~ [1987] ILRM 297 considered - Constitution of Ireland, 1937, Article 41 - (1985/228 - MacKenzie J. - 29/7/87)

|N. v. N.|

HUSBAND & WIFE

Divorce

Foreign decree - Ancillary order - Enforcement - Public policy - Maintenance of former wife - Foreign maintenance order directed former husband to pay capital sum to former wife - Enforcement of maintenance order not contrary to public policy - Payment of capital sum and accrued interest claimed by former wife in summary summons - ~See~ Conflict of Laws, divorce - (1985/228 - MacKenzie J. - 29/7/87)

|N. v. N.|

Citations:

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5

MAYO-PERROT V MAYO-PERROT 1958 IR 336

BANK OF IRELAND V CAFFIN 1971 IR 123

T V T 1983 IR 29, 1982 ILRM 217

SIMMONS V SIMMONS 1939 1 KB 490

GAFFNEY V GAFFNEY 1975 IR 333

DICEY & MORRIS CONFLICTS OF LAWS 10ED

COUNIHAN V COUNIHAN UNREP KENNY 27.7.1973

MAHON V MAHON UNREP HAMILTON 11.07.78 1983/5/1451

MAINTENANCE ORDERS ACT 1974 S3(2)

Justice MacKenzie

1 The parties were married at the Hammersmith Registry Office in November 1972. The marriage proved to be extremely unhappy.

2 It is unneccessary to review the evidence in detail.

3 I accept the testimony of the Plaintiff that for ten years neither she nor her children received any worthwhile financial support from the Defendant, who went so far as to appropriate that part of the unemployment assistance granted to her and her children for his own use and benefit. I mention this as being an incidence of his attitude.

4 Because of harrassment and humiliations on the part of the Defendant and of a woman friend who described herself as his wife and used his name, the Plaintiff in this case decided using her own words "that she needed a clean break from it all". She wanted to be "free from her husband and sort out her life once and for all".

5 This was in February 1982. She left Ireland and has made her home in Devonshire and I accept that it is her intention to reside over there permanently with her children. Financially she is anything but secure, relying mainly on the social services.

6 On the 6th of March 1984, the Plaintiff appeared in the County Court at Barnstable Devon and having given evidence before presentation of a divorce petition of intention to change domicile the Court

7 (a) ruled that she had acquired domicile to enable the Court to exercise its jurisdiction and

8 (b) the Court granted her a decree of divorce nisi and

9 (c) a Custody Order was granted to the Plaintiff in respect of the children of the marriage.

10 On the 21st day of May 1984 a decree of divorce absolute was made by the same Court.

11 The Defendant through Irish lawyers instructed a firm of English solicitors to represent him in the proceedings referred to above and an appearance was entered on his behalf. The Defendant did not personally attend the proceedings and it is not clear to what extent his English solicitors opposed the Plaintiff's applications.

12 These solicitors ceased in my view to represent him after May 1984.

13 On the 6th of November 1984 the Maintenance Order which is the subject of these proceedings was made whereby the same Court granted, inter alia, a capital sum of £50,000.00 sterling with interest thereon to the Plaintiff.

14 All these proceedings took place before the Domicile and Foreign Divorces Act1986; Had they taken place after the coming into force of that Act, in my opinion by virtue of Section 5 the Plaintiff's divorce would now be recognised...