P. L. v an trd Chl raitheoir

• Jurisdiction: Ireland
• Judge: Mr. Justice Kinlen
• Judgment Date: 07 April 1995
• Neutral Citation: 1995 WJSC-HC 2660
• Court: High Court
• Docket Number: RECORD NO. 163 J.R./1994
• Date: 07 April 1995

L (P) v. AN TARD CHLARAITHEOIR

JUDICIAL REVIEW

BETWEEN

P. L.

APPLICANT

AND

AN tARD CHLARAITHEOIR

RESPONDENT

1995 WJSC-HC 2660

RECORD NO. 163 J.R./1994

THE HIGH COURT

Synopsis:

CONSTITUTION

Provisions

Contravention - Prevention - Statute - Official - Duties - Determination of application for issue of licence - Statutory obligation to ensure that there was no lawful impediment to issue of licence - Official's duties delimited by statute - Unnecessary to decide whether official had duty to prevent contravention of Constitution - (1994/163 JR - Kinlen J. - 7/4/95) [1995] 2 ILRM 241

|L. v. tArd Chlaraitheoir|

DOMICILE

Test

Wife - Independence - Husband - Separation - Common law - Modification - Recognition of foreign divorce conditional on one spouse being domiciled in country of divorce court - Registrar-General's refusal to issue marriage certificate on application of husband subsequent to his second marriage - Official's objection that applicant's first wife not domiciled in England at date of presentation of her petition for divorce in that country - Decree absolute granted in England - Official's mistaken view of the facts - Determination of issue of first wife" domicile not within official's exclusive jurisdiction - Length of residence not the dominant factor - (1994/163 JR - Kinlen J. - 7/4/95) - [1995] 2 I.R. 372, [1995] 2 ILRM 241

|L. v. tArd Chlaraitheoir|

MARRIAGE

Certificate

Issue - Registrar - Duty - Impediment - Applicant husband sought issue of marriage certificate - Registrar objected that impediment existed arising from applicant's divorce from first wife in England - Objection that former wife not domiciled in England at date of divorce petition - Former wife resident in England for two years before that date - Registrar-General's assertion of exclusive jurisdiction to determine issue of domicile - Duties of Registrars and Deputy Registrars of Marriages in Ireland, 1892, articles 34, 38 - Marriages (Ireland) Act, 1844, ss. 16, 23 - Domicile and Recognition of Foreign Divorces Act, 1986, ss. 1, 3, 5 - Constitution of Ireland, 1937, Article 41 - (1994/163 JR - Kinlen J. - 7/4/95) - [1995] 2 I.R. 372, [1995] 2 ILRM 241

|L. v. tArd Chlaraitheoir|

Citations:

DISCHARGE OF THE DUTIES OF REGISTRARS & DEPUTY REGISTRARS OF MARRIAGES IN IRELAND REGS 1892

CONSTITUTION ART 41.3.3

MARRIAGES (IRL) ACT 1844 S16

MARRIAGES (IRL) ACT 1863 S4

MARRIAGES (IRL) ACT 1844 S23

R V HAMMERSMITH SUPERINTENDENT REGISTRAR OF MARRIAGES EX PARTE MIR-ANWA-RUDDIN 1917 1 KB 634

R V BRENTWOOD SUPERINTENDENT REGISTRAR OF MARRIAGES EX PARTE ARIAS 1968 3 AER 279

MARRIAGE ACT 1949 S32(2) UK

CLANCY V MIN FOR SOCIAL WELFARE UNREP BUDD 18.2.94 1994/1/175

GAFFNEY V GAFFNEY 1975 IR 133

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986

KEEGAN V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

T V T 1983 IR 29

L V REGISTRAR-GENERAL OF MARRIAGES 1984 ILRM 667

FINLAY V ARD CLARAITHEOIR 91/9510P

GILLIS V GILLIS (1874–1875) 7 IR EQ 597

SILLAR, RE: HURLEY V WIMBUSH 1956 IR 344

M(C) V M( T) (NO 2) 1990 2 IR 52

MOFFETT V MOFFETT 1920 1 IR 57

MC V MC EX TEMP UNREP GEOGHEGAN 20.1.94

FLEMING (DECEASED), IN RE 1987 ILRM 638

1 Judgment of the Honourable Mr. Justice Kinlen dated the 7th day of April, 1995.

2 This application for Judicial Review turns on the powers of investigation of the Registrar-General with respect to the circumstances in which a foreign divorce was obtained. It is the Applicant's submission that the Registrar-General has no power to decide on the validity under Irish law of foreign divorces. Conversely, the Respondent claims that not only does he have such a power but that the Court should only interfere with his conclusions in circumstances where such conclusions are administratively unreasonable. It is necessary, therefore, to determine the extent of the Registrar-General's powers with regard to the investigation of the validity of foreign divorces, before considering the extent to which any such decision on the validity of a foreign divorce is subject to Judicial Review and, indeed, the correct basis for assessing domicile.

3 It was urged on behalf of the Registrar-General that his power to investigate is to be found in the provisions of the Regulations for the Discharge of the Duties of Registrars and Deputy Registrars of Marriages in Ireland, 1892 (hereinafter referred to as "the 1892 Regulations"). In addition, Counsel for the Registrar-General places reliance on Article 41.3.3. of the Constitution. It is claimed that the Registrar-General as a Public Office Holder is under an obligation to uphold the provisions of the Constitution and that he must, accordingly, subject all applications for remarriage based on a foreign divorce to close scrutiny. On behalf of the Applicant, it was submitted that the 1892 Regulations confer no such power of investigation and, indeed, as delegated legislation cannot increase or expand the powers of the Registrar-General under the Marriages Acts. Accordingly, it is submitted that one must examine the primary legislation itself in order to determine the powers of the Registrar-General and that such an examination discloses no such power to investigate.

4 It may be useful to consider the effect of the 1892 Regulations and the effect of the primary legislation separately, before considering the constitutional argument.

THE 1892 REGULATIONS

5 Article 34 of the 1892 Regulations provides as follows:-

"34. If Notice is served for the Marriage of a Divorced person, the Registrar should at once refer the case to the Registrar-General, and not issue his Licence or Certificate until authorised to do so."

6 Counsel for the Respondent infers from this provision, that a power of investigation must reside with the Registrar-General; it is precisely for the purpose of investigation that such cases must be referred to the Registrar-General. The Applicant, however, denies that any such inference is to be drawn. It is his submission that the 1892 Regulations do no more than provide that cases involving a divorce should be referred to the Registrar-General. There is, in his opinion, no room for inferring any power of investigation.

7 Reference should also be made at this stage to Article 38 of the 1892 Regulations, which provides as follows:-

"38. The Registrar must satisfy himself before he accepts a Notice for Marriage that such Notice is in strict accordance with the requirements of the Regulations for his guidance, and if he has any reason to believe that there is some lawful impediment to the proposed Marriage, or that, as regards some particular, the Declaration about to be made would be false, he shall require the Party to furnish satisfactory proof of the truth of such particular before he or she signs the Notice. He should further represent to the Party that, if a false Declaration be made, he or she will be liable to a Prosecution for Perjury."

8 This provision would appear to authorise the investigation by a Registrar into the existence of some "lawful impediment" to a proposed marriage. It is self-evident that a subsisting marriage (including a marriage which survives a foreign divorce because that divorce is not recognised under Irish law) would represent such a "legal impediment."

9 It seems therefore that the Registrar-General could base his powers of investigation on this particular regulation. However, it may not be entirely satisfactory to ground the Registrar-General's powers on the 1892 Regulations. As indicated above, the Applicant has doubted whether the 1892 Regulations could increase or expand the jurisdiction given to the Registrar-General pursuant to the provisions of the Marriages Acts. Although the Applicant has not formally sought to put in issue the validity of the 1892 Regulations; the Applicant is not seeking a Declaration as to the validity of the 1892 Regulations; there may be some merit in his arguments. Accordingly, it may be more satisfactory to base the Registrar-General's powers on the primary legislation.

THE MARRIAGES ACTS

10 The legislation relevant to this case is the Marriages (Ireland) Act, 1844 (hereinafter referred to as "the 1844 Act") and the Registration of Marriages (Ireland) Act, 1863 (hereinafter referred to as "the 1863 Act").

11 The relevant provisions of the 1844 Act are as follows:-

"16. After the expiration of 7 days if the Marriage is to be solemnised by Licence, or of 21 days if the Marriage is to solemnised without Licence, after the day of the entry of such Notice, the Registrar, upon being requested so to do by or on behalf of the party by whom the Notice was given, shall issue under his hand a Certificate in the form of Schedule (B) to this Act annexed, provided that no lawful impediment be shown to the satisfaction of the Registrar why such Certificate should not issue and provided that the issue of such Certificate shall not have been sooner forbidden in the manner hereinafter mentioned by any person or persons authorised in that behalf as in hereinafter is provided......."

12 23. Any person, upon the payment of the sum of five shillings, may enter a caveat with the Registrar against the grant of a Certificate or a Licence for the Marriage of any person named therein; and if any caveat be entered with the Registrar, such caveat being duly signed by or on behalf of the person who enters the same, together with his or her place of residence, and the ground of objection on which his or her caveat is founded, then no Certificate or Licence shall issue or be granted until the Registrar shall have examined into the matter of the caveat and is satisfied that it ought not to obstruct the grant of the Certificate or Licence for the said Marriage, or until the caveat be withdrawn by the party who entered the same; provided that in cases of doubt it shall be lawful for the Registrar...