S (R) v S (P)

• Jurisdiction: Ireland
• Judge: Mr. Justice Abbott
• Judgment Date: 27 July 2009
• Neutral Citation: [2009] IEHC 579
• Court: High Court
• Date: 27 July 2009

S (R) v S (P)

FAMILY LAW

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 AND IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

R. S.

APPLICANT

AND

P. S.

RESPONDENT

PRELIMINARY ISSUE (S)

[2009] IEHC 579

[No. 41 M/2008]

THE HIGH COURT

FAMILY LAW

Judicial separation

Preliminary issue -Jurisdiction - Forum conveniens - Habitual residence - Meaning of ordinary residence -Principles to be applied - Intention to return to residence - Tenure of physical residence - Possibility of being ordinarily resident in more than one place - Entitlement of applicant to judicial separation - Normal marital relationship - Provision for spouse - Equality in provision for spouse - Adultery - Whether couple ordinarily resident in Ireland - Whether applicant entitled to judicial separation - Whether normal marital relationship existed - Van den Boogaard v Loumen [1997] ECR 1147, O'K v A [2008] IEHC 243 [2008] 4 IR 801, Charman v Charman [2005] EWCA Civ 1606 [2006] WLR 1053 considered; N v O'D [2006] IEHC 452 (Unrep, Abbott J, 29/11/2006) considered; Marinos v Marinos [2007] EWHC 2047 [2007] 2 FLR 1018 and White v White [2001] 1 AC 596 followed ; C.M. v. Delegacion Provincial de Malaga [1999] 2 I.R. 363 and T.F. v. Ireland [1995] 1 I.R. 321 applied - Judicial Separation and Family Law Reform Act 1989 (No 6) ss 2, 3 & 4 - Council Regulation (EC) No. 2201/2003 arts 3, 4, 5, 6, 7 & 31 - Council Regulation (EC) No 44/2001 art 5 - Jurisdiction and entitlement to judicial separation affirmed (2008/41M - Abbott J - 27/7/2009) [2009] IEHC 579

S (R) v S (P)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S3

EEC REG 44/2001

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(B)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(F)

EEC REG 2201/2003 ART 3

EEC REG 2201/2003 ART 6

EEC REG 2201/2003 ART 4

EEC REG 2201/2003 ART 5

EEC REG 2201/2003 ART 7

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S31(4)

VAN DEN BOOGAARD v LAUMEN 1997 ECR I-1147 1997 QB 759 1997 3 WLR 284 1997 AER (EC) 517

T (D) v T (C) 2002 3 IR 334

O'K v A 2008 4 IR 801 2008/49/10563 2008 IEHC 243

N (SJ) v O'D (PC) UNREP ABBOTT 29.11.2006 2007/43/9128 2006 IEHC 452

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S3(1)

MARINOS v MARINOS 2007 2 FLR 1018 2008 2 FCR 47

FERNANDEZ v CMSN 1994 ECR I-4295

SWADDLING v ADJUDICATION OFFICER 1999 ECR I-1075 1999 2 FLR 184 1999 2 CMLR 679 1999 AER (EC) 217

M (C) & M (O) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103 1999/16/4846

MUNRO v MUNRO 2008 1 FLR 1613 2008 3 FCR 401

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S3(1)(B)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S3(2)(B)

FAMILY HOME PROTECTION ACT 1976

EEC REG 2201/2003 ART 3(1)(A)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S4

F (T) v IRELAND & ORS 1995 1 IR 321

WHITE v WHITE 2001 1 AC 596 2000 3 WLR 1571 2001 1 AER 1 2000 2 FLR 981 2000 3 FCR 555

CHARMAN v CHARMAN (NO 4) 2007 1 FLR 1246 2007 2 FCR 217

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S4(1)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S4(2)

1 Mr. Justice Abbott delivered on the 27th day of July, 2009

2 1. The applicant (wife) was married to the respondent (husband) on the 25 ^th May, 1996, in Ireland within this jurisdiction. There are six children of the marriage, the eldest born on the 25 ^th March, 1997, and the youngest on the 16 ^th April, 2005. By special summons dated the 4 ^th June, 2008, the wife sought judicial separation in these proceedings from the husband. The jurisdiction of this Court and the entitlement of the wife to a judicial separation has been contested by the husband.

Background of the Marriage

3 2. The wife is 46 and the husband is 60 years of age. Both are English citizens. The parties met in 1990. At that time the husband had become a UK tax exile and had established a business in the Cayman Islands. When the parties married in 1996, they resided in Ireland moving their home three times to its present location. However, they remained an extraordinarily mobile family, as they moved whenever mother and children were fit to travel, generally, between their home in Ireland, a home in the Cayman Islands and, more or less the same summer holiday hotel in France. The exact details of this triangular movement will be examined in some detail in this judgment as it is pertinent to the issues arising.

Litigation History to Date

4 3. An interesting feature of the proceedings is that whereas the special summons issued on the 8 ^th May, 2008, and was served a short time thereafter, the wife did not swear a grounding affidavit until the 7 ^th October, 2008, - an affidavit of means having been sworn together with an affidavit of welfare on the 2 ^nd October, 2008. A conditional appearance was entered by the husband on the 9 ^th October, 2008. The wife served a notice of motion returnable for the 23 ^rd January, 2009, seeking, what, in approximate terms, may be described as a Maerva injunction in relation to the husband's property, and an order deeming the appearance entered by the husband on the 9 ^th October, 2008, to be a conditional appearance, or further or alternatively, an order directing the husband to enter an unconditional appearance to the within proceedings, together with miscellaneous relief, and, (perhaps a little over ambitiously) an order permitting the wife to prosecute the proceedings, as though they were undefended. The husband served a notice of motion returnable on the 30 ^th January, 2009, seeking the following relief:-

5 1. An order determining whether the court has jurisdiction to determine the proceedings.

6 2. Without prejudice to the foregoing an order determining whether or not, if it has jurisdiction to determine the within proceedings, which was denied, ought to exercise that jurisdiction having regard to the principles of forum conveniens and/or determining whether or not there is a more convenient jurisdiction in which the matrimonial issues arising between the parties might be determined.

7 3. Without prejudice to the foregoing, an order for the determination, as a preliminary issue, whether or not the grounds upon which a decree of judicial separation (and the ancillary reliefs consequent therefrom) are sought by the applicant are satisfied and whether the court has jurisdiction to grant an order for judicial separation pursuant to s. 3 of the Judicial Separation and Family Law Reform Act 1998.

8 4. Further or in the alternative an order staying these proceedings pursuant to the provisions of Council Regulation No. 44/201001 (Brussels I) and/or Council Regulation No. 2201/2003 (Brussels IIbis) or otherwise, as may be appropriate.

9 This notice of motion was grounded on affidavits sworn on the 28 ^th January, and it is sufficient for the purposes of this introductory narrative to quote the grounds which are relied upon by the husband set out in para. 3 of that affidavit as follows:-

10 (i) "The applicant did not comply with s. 2(1)(b) and 2(1)(f) of the Judicial Separation and Family Law Reform Act when filing her special summons of the 8 ^th May, 2008, although she relied on ss. 2(1)(b) and 2(1)(f) in her special summons and grounding affidavit. The applicant cannot demonstrate under s. 2(1)(f) that a normal marital relationship had not existed between the spouses for a period of at least one year immediately preceding the date of application for judicial separation since my wife and I have been living a normal marital life until eight days before she filed her special summons. Furthermore, the applicant cannot show that under s. 2(1)(b) that I had behaved prior to 8 ^th May, 2008, in a way that she cannot be reasonably expected to live with me. It is my contention that she filed for a judicial separation on May 8 ^th as a direct result of meeting another man on April 30 ^th, 2008, and becoming immediately and totally besotted with him. I say that there is simply no factual or evidential basis upon which the applicant had any right to file a summons for judicial separation on May 8 ^th, 2008 and I maintain that I never behaved in such a way at any time during the course of our marriage to justify a claim under s. 2(1)(b).

11 (ii) I further say that this Honourable Court does not have jurisdiction to determine the within proceedings on the basis that I do not believe that the applicant has at any time been habitually or ordinarily resident in Ireland, nor has she been or is she domiciled, in Ireland."

12 The affidavit continues to describe the marriage in detail and also relies on the extensive business interests of the husband in the Cayman Islands, together with other connections of the family there, indicating his claim that the marital disagreements should be heard by a court in the Cayman Islands as a more convenient forum. To substantiate this claim the husband had initiated proceedings for divorce in the Cayman Islands and, while it is as yet not clear whether a pre-nuptial agreement made between the parties on the 11 ^th May, 1996, in Florida may have any weight either in Irish or Cayman Island proceedings, it is fair to say that if such an agreement were to have weight of any significance, there is a fear on the part of the wife that it would have more weight in relation to certain very restrictive provisions affecting her in the event of the case being heard in the Cayman Islands. By order made ex parte on the 23 ^rd January, 2009, this court ordered that:-

13 1. That the husband be restrained until further order of this Court from continuing to prosecute the Cayman Islands divorce proceedings, and

14 2. The husband be restrained until further order of this Court from disposing or otherwise dealing with his assets wherever situated in such a way as to...