RC v CC

• Jurisdiction: Ireland
• Judgment Date: 17 January 1997
• Date: 17 January 1997
• Docket Number: [1996 No. 10883P]
• Court: High Court

R.C. v. C.C. (Divorce)

R.C.

Plaintiff

and

C.C.

Defendant

[1996 No. 10883P]

High Court

Constitution - Marriage - Divorce - Application for dissolution of marriage - Whether jurisdiction to grant dissolution of marriage derives from the Constitution - Whether High Court a court designated by law for purposes of ordering dissolution of marriage - Whether jurisdiction to order dissolution of marriage limited by Constitution or by statute - Circumstances in which court may order dissolution of marriage - Family Law (Divorce) Act, 1996 (No. 33) - Constitution of Ireland, 1937, Article 41, s. 3, sub-s. 2.

Family Law - Marriage - Divorce - Application for dissolution of marriage - Children of the marriage - Children no longer dependant on parents - Whether proper provision made for children - Circumstances in which court may order dissolution of marriage - Family Law (Divorce) Act, 1996 (No. 33) - Constitution of Ireland, 1937, Article 41, s. 3, sub-s. 2.

Article 41, s. 3, sub-s. 2 of the Constitution of Ireland, 1937, provides as follows:—

"A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that —

i at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,

ii there is no reasonable prospect of a reconciliation between the spouses,

iii such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and

iv any further conditions prescribed by law are complied with."

The Family Law (Divorce) Act, 1996, which at all material times was not in force, sets out a statutory framework for a divorce jurisdiction in the State. The long title of the Act commences: "An Act to make provision for the exercise by the courts of the jurisdiction conferred by the Constitution to grant decrees of divorce. . ." whilst s. 5 states that the power under the Act to grant a decree of dissolution of marriage is in exercise of the jurisdiction conferred by Article 41, s. 3, sub-s. 2 of the Constitution.

The plaintiff and defendant were a married couple who had three adult children. The plaintiff and defendant separated and the plaintiff lived with another woman by whom he had a daughter; from the time of their separation, the plaintiff and the defendant had continuously lived apart.

The plaintiff instituted proceedings seeking a decree of dissolution of the marriage pursuant to Article 41, s. 3, sub-s. 2 of the Constitution. It was submitted for the plaintiff that the Family Law (Divorce) Act, 1996, and, in particular, the long title and s. 5 thereof, indicated that the Act was intended to regulate a pre-existing jurisdiction conferred by the Constitution.

Counsel for the defendant did not seek to oppose the plaintiff's proceedings other than to seek to ensure that proper provision be made for the spouses and the children of the marriage pursuant to the provisions of the Article 41, s. 3, sub-s. 2 of the Constitution.

Held by Barron J., in granting a decree of dissolution of marriage, 1, that having had regard to the provisions of the Family Law (Divorce) Act, 1996, and the Constitution, the jurisdiction to grant a dissolution of marriage was...