PK v TK

• Jurisdiction: Ireland
• Judgment Date: 05 March 2002
• Date: 05 March 2002
• Docket Number: [S.C. No. 171 of 2000]
• Court: Supreme Court

P.K. (otherwise C.) v. T.K. (Domicile)

P.K. (otherwise C.)

Applicant

and

T.K.

Respondent

[S.C. No. 171 of 2000]

Supreme Court

Family law - Domicile - Foreign divorce - Recognition - Validity of foreign divorce - Conflict of laws - Jurisdiction of foreign court - Domicile of origin and choice - Change of domicile - Test applicable - Inferences to be drawn - Sufficiency of evidence to establish change of domicile - Whether domicile of origin changed - Whether domicile of choice abandoned.

The applicant issued High Court proceedings in 1999, seeking a decree of divorce from the respondent pursuant to s. 5 of the Family Law (Divorce) Act, 1996. The parties were married in New York in 1963 and a decree of divorce was granted by a New York court in 1980. The applicant contested the validity of that decree in Irish law, on the basis that neither party was at that time domiciled in New York. The domicile of the respondent was at all times Irish. The applicant's domicile of origin was the United States, she subsequently acquired an Irish domicile of choice; she became an Irish citizen and held an Irish passport. She returned to live and work in the United States in 1977.

The High Court (Murphy J.) determined as a preliminary issue in the divorce proceedings, that the divorce granted by the New York court was valid having regard to the domicile of the applicant at that time. The High Court ordered that the decree of divorce of the New York court was entitled to recognition in the State and the marriage of the parties did not subsist in this State in 1999, being the date of issue of Irish divorce proceedings by the applicant.

The applicant appealed to the Supreme Court.

Held by the Supreme Court (Keane C.J., Murphy and Fennelly JJ.), in dismissing the appeal, 1, that the applicable test for determining whether a domicile of choice was abandoned (in favour of either a new domicile of choice or reversion to the domicile of origin) was whether the person had unmistakably shown by his or her conduct, viewed against the background of the surrounding circumstances, that he or she had formed the settled purpose of residing indefinitely in another jurisdiction. This issue was in the final analysis one of fact for the court to determine.

In re Sillar: Hurley v. Wimbush [1956] I.R. 344 followed.

2. That recognition of a foreign divorce depended on whether one of the parties was domiciled in that jurisdiction at the time the divorce was granted but retrospective light might be cast on the person's intentions on that date by their later actions. However, a change of domicile was not assumed where the move was explained by some external and intrinsically temporary factor.

• W. v. W. [1993] 2 I.R. 476; McC. v. McC. (Unreported, Supreme Court, 28th July, 1995); T. v. T.[1983] I.R. 29 followed.

Obiter dictum: That there might well be cases where a person who took steps in relation to a decree of divorce granted by a foreign jurisdiction might later question its validity.

Gaffney v. Gaffney [1975] I.R. 133; R.B. v. A.S. (Nullity: Domicile)[2002] 2 I.R. 428 considered.

Cases mentioned in this report:-

R.B. v. A.S. (Nullity: Domicile) [2002] 2 I.R. 428.

Gaffney v. Gaffney [1975] I.R. 133.

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

Lambert v. An tArd Chláraitheoir [1995] 2 I.R. 372.

C.M. v. T. M. (No. 2) [1990] 2 I.R. 52; [1988] I.L.R.M. 456.

McC. v. McC. (Unreported, Supreme Court, 28th July, 1995).

In re Sillar: Hurley v. Wimbush. [1956] I.R. 344.

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

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

Appeal from the High Court.

The facts are summarised in the headnote and are more fully set out in the judgment of Fennelly J., infra.

On the 14th June, 2000, the High Court (Murphy J.) determined as a preliminary issue in divorce proceedings, that the divorce applied for by the respondent and granted unopposed by the New York State Supreme Court on the 7th January, 1980, was valid having regard to the domicile of the applicant at that time. The High Court ordered that the decree of divorce of the New York court was entitled to recognition in the State and the marriage of the parties did not subsist in this State on the 16th June, 1999, being the date of issue of Irish divorce proceedings by the applicant.

By notice of appeal dated the 15th June, 2000, the applicant appealed the decision of the High Court. The appeal was heard by the Supreme Court (Keane C.J., Murphy and Fennelly JJ.) on the 13th February, 2002.

Cur. adv. vult.

Keane C.J. 5th March, 2002

I have read the judgment about to be delivered by Fennelly J. and I agree.

Murphy J.

I have read the judgment about to be delivered by Fennelly J. and I agree with it.

Fennelly J.

The applicant is the applicant in High Court proceedings, issued in 1999, in which she seeks a divorce from the respondent pursuant to s. 5(1) of the Family Law (Divorce) Act, 1996. The applicant and the respondent were married in New York on the 20th April, 1963. A decree of divorce was granted by a New York Court on the 7th January, 1980, on the petition of the respondent. The applicant contests the validity of that decree in Irish law, stating that neither party was at that time domiciled in New York. The judgment of the High Court (R. Murphy J.), determined, as a preliminary issue, that the domicile of the applicant was that of New York State. Accordingly, the court ordered that the decree of the New York court was entitled to recognition in the State and that the marriage of the parties in 1963 did not subsist in the...