R.B. v A.S. (Nullity: domicile)

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 19 December 2001
• Neutral Citation: [2001] IESC 106
• Court: Supreme Court
• Docket Number: [S.C. Nos. 68, 76 and 77 of 2001]
• Date: 19 December 2001

S (A) (ORSE B (A)) v. B (R)

BETWEEN

A. S. (OTHERWISE A. B.)

APPELLANT/RESPONDENT

AND

R. B.

RESPONDENT/PETITIONER

[2001] IESC 106

Keane C.J.

Denham J.

Murphy J.

68 & 76 & 77/01

THE SUPREME COURT

Synopsis:

FAMILY LAW

Domicile

Recognition of foreign divorce - Domicile of choice - Domicile of origin - Capacity - Nullity - Whether marriage of parties valid and subsisting - Litigation -- Lay litigant - Right to legal representation - Application to adjourn - Custody - Welfare of children - Guardianship - Rights of access - Whether judgment of High Court should be set aside - Whether foreign divorce recognisable in Irish law - Whether respondent received fair hearing - Guardianship Of Infants Act, 1964 - Domicile and Recognition of Foreign Divorces Act, 1986 (68, 76 & 77/2001 - Supreme Court - 19/12/01)

S(A) v B(R) - [2002] 2 IR 428

Facts: The petitioner had sought a decree of nullity in respect of a marriage entered into with the respondent. The main issues centred around the domiciles of origin and of choice of the parties. The petitioner contended that the respondent (who had been born in Germany) who had previously been married had obtained a divorce in Germany which was not valid in this country and consequently their marriage was null and void. Mr. Justice Lavan was satisfied that the respondent had acquired an Irish domicile of choice and that the divorce obtained by the respondent could not be recognised in this country and granted the decree of nullity sought. The respondent had originally sought an adjournment of the trial as she had instructed a new legal team who contended that they were not ready to proceed. The adjournment of the High Court action was refused by Mr. Justice Lavan who contended that he would adjourn the proceedings on the condition that the respondent would be liable for all the costs incurred so far or else the case would go on without her lawyers. The respondent elected to proceed and judgment was given in relation to the nullity issue and the guardianship of one of the children. The respondent sought to appeal the judgment to the Supreme Court. It was argued that the refusal of an adjournment was a denial of the respondent's right to legal representation and fair procedures. It was submitted that the hearing itself had not been conducted fairly by the trial judge. On behalf of the petitioner it was contended that the respondent had instructed three teams of lawyers in total, there had been a number of previous adjournments and the respondent was aware before the hearing that no further adjournments would be granted.

Held by the Supreme Court (Keane CJ delivering judgment; Denham J and Murphy J concurring) in dismissing the appeal. The granting of an adjournment was a function essentially within the discretion of a trial judge. In the circumstances the trial judge would have been perfectly justified in refusing an adjournment outright without offering an alternative on terms. The application for an adjournment on the morning of the hearing was entirely without merit. The trial judge showed concern that the respondent's case should be fully heard and that she would not suffer any avoidable injustice. The trial judge had conducted the difficult proceedings in an exemplary manner. The law relating to the validity of the wife's divorce was governed by private international as it was entered into prior to the enactment of the Domicile and Recognition of Foreign Divorces Act, 1986. The evidence established that neither the respondent or her first husband had a German domicile and thus the divorce obtained in Germany could not be recognised in Ireland. The High Court judge had correctly issued the decree of nullity and the appeal in this regard would be dismissed. The issue of access in relation to one of the children would be determined by the High Court if agreement between the parties could not be reached.

Citations:

GUARDIANSHIP OF INFANTS ACT 1964

FAMILY LAW ACT 1995 S36

DOMESTIC VIOLENCE ACT 1996

FAMILY HOME PROTECTION ACT 1976

HEALY, STATE V DONOGHUE 1976 IR 275

IRELAND V AIREY 1979 2 EHRR 305

DOMICILE AND RECOGNITION OF FOREIGN DIVORCES ACT 1986

BINCHY IRISH CONFLICTS OF LAW

M (C) V M (T) 1991 ILRM 268

CONSTITUTION ART 50

CONSTITUTION ART 40.1

W V W 1993 2 IR 477

SILLAR, HURLEY V WIMBUSH, RE 1956 IR 344

WHICKER V HUME 28 LJ CH 396

JOYCE, CORBET V FAGAN, RE 1946 IR 277

UDNY V UDNY LR 1 HL SC 441

MCC V MCC 1996 2 FLJ 68

GAFFNEY V GAFFNEY 1975 IR 133

1 19th day of December, 2001 by Keane C.J. [nem diss]

Introduction.

2 There are before the court appeals arising out of three separate sets of proceedings. The first were commenced by way of petition by R. B (hereafter "the husband") claiming a decree of nullity in respect his marriage to A. S (hereafter "the wife"). Such a decree was granted by the High Court (Lavan J) on the 28th February of this year. The second are proceedings brought pursuant to the Guardianship of Infants Act, 1964by the husband against the wife in respect of their two children. The High Court on the 28th February also made an order giving the custody of the younger of the two children to the husband, the older child at this stage being no longer a minor. The third set of proceedings were brought by the husband against the wife pursuant to s.36 of the Family Law Act, 1995and the Domestic Violence Act, 1996. The only application made in those proceedings which now is in issue was for costs on the wife's behalf, an application which was refused by the High Court (Lavan J). While notices of appeal in respect of all three sets of proceedings were served on behalf of the wife, the written and oral submissions of the parties dealt almost entirely with two issues, both arising out of the nullity proceedings. The first was whether those proceedings had been conducted by the learned High Court judge in breach of the fair procedures to which the wife was entitled and, accordingly, whether the order of the High Court should be set aside and the proceedings remitted to the High Court for a new hearing. The second was whether, assuming the first ground were decided against the wife, the learned High Court judge was correct in law in granting a decree of nullity.

3 The salient facts, insofar as they are not in dispute, can be summarised as follows. The wife was born on January 5th 1952 in what was then the Federal Republic of Germany, ("West Germany"). The family came to live in Ireland in 1962, when the wife was 10 years old, in circumstances which will be considered in more detail at a later stage. With the exception of two periods in 1963 and 1964, she has resided in Ireland since then.

4 On the 19th July, 1976, the wife was married in Ireland to W. S (who was subsequently joined as a notice party in the nullity proceedings and will henceforth be so described) according to the rites of the Church of Ireland. He was born on November 10th 1949 in West Germany and arrived in Ireland in 1955 with his parents. Apart from a period spent in West Germany of approximately 10 months in 1971, he has resided in this jurisdiction since his arrival in 1955 and in 1967 became an Irish citizen. On the 13th March 1985, the District Court of Schoneberg, Brandenberg, Germany, on the petition of the wife, which was not contested by the notice party, dissolved the marriage entered into between them.

5 On the 31st October 1986, the wife was married to the husband in a civil ceremony at Bad Nauheim in West Germany. The husband is an Irish citizen whose domicile, it is agreed, has always been Irish. The ground on which the decree of nullity was granted by the learned High Court judge was that the decree of dissolution of the marriage between the wife and the notice party granted by the German court was not capable of being recognised in Irish law since, as it was held, neither of the parties was domiciled in Germany at the time it was granted and that, accordingly, the marriage entered into in Bad Nauheim between the husband and the wife was not a valid marriage in Irish law.

6 There were two children of the marriage, Ro. born on the 19th February 1981 and Ru. born on the 4th December 1987. Unhappy differences arose between the husband and wife which resulted in these three sets of proceedings.

7 It is convenient first to set out the history of the proceedings in the High Court and the submissions of the parties as to the issue of fair procedures generally.

The Proceedings in the High Court.

8 When the petition in the nullity proceedings was served on the wife, an appearance was entered on her behalf. On the 22nd March 1999, a notice of change of solicitors was filed on her behalf and the new solicitors instructed senior and junior counsel to act for her. On the 11th June 1999, the proceedings were listed for hearing in the High Court on the 6th December 1999 together with the proceedings under the Guardianship of Infants Act, 1964and the proceedings issued pursuant to the Family Home Protection Act, 1976and the Domestic Violence Act, 1996.

9 Thereafter, the proceedings were adjourned from time to time principally, it would seem, because it was stated on behalf of the wife that she was not well enough to attend court. Difficulties also arose because of the unavailability of a judge to hear the proceedings. The nullity proceedings ultimately came on for hearing before Lavan J on the 21st June, when the wife was represented by the same senior and junior counsel. On that day and the following day, the court heard evidence from the notice party, who was cross-examined by senior counsel on behalf of the wife. On the following day, the court heard evidence from a German lawyer as to the jurisdiction of the German court to grant the divorce and also from Ms. C.M., a sister of the wife. At the end of that day's hearing, the learned trial judge indicated that the notice party,...