T(D) v L(F)

• Jurisdiction: Ireland
• Judge: Mr. Justice Frederick Morris
• Judgment Date: 23 November 2001
• Neutral Citation: [2001] IEHC 223
• Docket Number: Record Number 2000/82M
• Court: High Court
• Date: 23 November 2001

T (D) v L (F)

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

AND IN THE MATTER OF

THE FAMILY LAW (MAINTENANCE OF SPOUSES AND

CHILDREN) ACT1976 AS AMENDED AND

IN THE MATTER OF

THE FAMILY LAW (DIVORCE) ACT,1996

BETWEEN

D.T.

APPLICANT

AND

F.L.

RESPONDENT

AND, BY ORDER THE ATTORNEY GENERAL

[2001] IEHC 223

Record Number 2000/82M

The High Court

Synopsis:

FAMILY LAW

Domicile

Divorce - Recognition of foreign divorce - Preliminary issue - Whether respondent had discharged onus of proof that he had relinquished domicile of origin - Whether foreign divorce entitled to recognition - Judicial Separation and Family Law Reform Act, 1989 - Family Law Act, 1995 - Family Law (Divorce) Act, 1996 - Family Law (Maintenance of Spouses and Children) Act 1976 - Domicile and Recognition of Foreign Divorces Act, 1986 (2000/82M - Morris P - 23/11/01) - [2002] 2 ILRM 152

T (D) v L (F)

Facts: The applicant had sought a decree of judicial separation pursuant to the Judicial Separation and Family Law Reform Act, 1989 and other ancillary reliefs. It was ordered the issue of whether a divorce obtained in the Netherlands was entitled to recognition in the State be tried as a preliminary issue. The respondent claimed that the divorce obtained in the Netherlands was entitled to recognition in the State on the basis that on the date when the divorce was obtained he was domiciled in that jurisdiction. The respondent also claimed that the divorce was entitled to recognition on the basis of residence. Both parties had a domicile of origin in Ireland and had married and set up the family home in Dublin. Some years later the family moved to the Netherlands when the respondent was appointed to a position there. Both parties learnt and spoke Dutch fluently. Their children were enrolled into primary schools. Differences arose in the marriage and the applicant and the children returned to Ireland. The applicant believed that the respondent was in negotiation with his employer with a view to returning to Ireland. The respondent contended that the idea of returning to work in Ireland was one of many options he considered and did so only in the hope that it might save the marriage and that it was always his intention to remain on in the Netherlands. The respondent contended that he had severed his connections with Ireland and that he now had acquired a domicile of choice in the Netherlands. The applicant disputed the respondent’s assertion and contended that the respondent’s move to the Netherlands was no more than a career change and was motivated by the tax regime in Ireland and that he had returned to Ireland to discuss the job which his employer (an international firm) would give him in Ireland. The applicant stated that she had initiated divorce proceedings in the Netherlands as she needed sufficient funds to keep herself and the children. She applied for interim maintenance in the Netherlands and it was a condition of such an order that the applicant prosecute the case to seek a divorce.

Held by Mr. Justice Morris in stating that the respondent had not acquired a domicile of choice in the Netherlands. The respondent became fond of living in the Netherlands and was content to remain there for the purposes of his work. However the respondent had not formulated any intention of abandoning Ireland as his domicile of origin. Accordingly on the date upon which the divorce was obtained in the Netherlands the respondent was domiciled in Ireland. The court was satisfied that the respondent being aware of the divorce proceedings availed of their existence to settle up outstanding matters. It was common case that a Dutch court would accept jurisdiction based on the residence of one of the parties. The divorce was granted after the coming into operation of the Domicile and Recognition of Foreign Divorces Act, 1986. The question was whether foreign divorces were regulated by the common law or were they regulated by statute. With the enactment of section 5 of the 1986 Act the rules relating to recognition of foreign divorces passed from the common law and thereafter were regulated by statute. Thereupon the court’s right to alter the rules ceased. Residence was not a basis for recognition under the Act. Accordingly the respondent was not entitled to a declaration that the divorce obtained in the Netherlands was entitled to recognition in this State.

Citations:

JUDICIAL SEPERATION AND FAMILY LAW REFORM ACT 1989 S2(1)(A)

JUDICIAL SEPERATION AND FAMILY LAW REFORM ACT 1989 S2(1)(B)

JUDICIAL SEPERATION AND FAMILY LAW REFORM ACT 1989 S2(1)(F)

FAMILY LAW ACT 1995 S29(1)(D)

FAMILY LAW ACT 1995 S29(1)(E)

JOYCE V FAGAN 1946 IR 277

RAMSEY V LIVERPOOL ROYAL INFIRMARY 1939 AC 588

MCG V W 2000 ILRM 107

DOMICILE AND RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5

W V W 1993 2 IR 476

DOMICILE AND RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5(1)

DOMICILE AND RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5(4)

ARMITAGE V AG 1906 135

Mr. Justice Frederick Morris

1 These proceedings were initiated by way of Special Summons dated the 6th July 2000 whereby the Applicant claimed inter alia

2 (a) A decree of Judicial Separation pursuant to Section 2(1)(a) and/or 2(1)(b) and/or 2(1)(f) of the Judicial Separation and Family Law Reform Act 1989

3 In addition the Applicant sought a number of ancillary reliefs.

4 By Order of the 6th July 2001 pursuant to the Applicant's Notice of Motion dated the 30th May 2001 by consent it was ordered:

"(1) That a preliminary issue should be tried herein the issue being "whether the Respondent is or is not entitled to a declaration that the validity of a divorce obtained on the 13th day of July 1994 under the civil law of the Netherlands is or is not entitled to recognition in this State pursuant to the Family Law Act,1995Section 29(1)(d) and/or (e)."

5 It was also ordered that the Attorney General be joined as a Notice Party for the trial of the issue.

6 The Respondent claims that the divorce obtained on the 13th July 1994 under the civil law of the Netherlands is entitled to recognition in this State pursuant to the 1995 Act. The Applicant disputes and denies that this is so. There are two grounds upon which the Respondent bases his claim. The first is that on the date when the divorce was obtained under the civil law of the Netherlands he was domiciled in that jurisdiction.

7 The second ground is that the Respondent claimed that a divorce obtained in the Netherlands on the basis of residence, as the divorce obtained on the 13th July 1994 was, is entitled to recognition in this State.

8 With regard to the first of these issues.

9 The facts which are alleged by the Applicant upon which he relies to establish that he was domiciled in the Netherlands at the relevant time are as follows: He says that he and the Applicant were married on the 30th August 1980. Both parties had a domicile of origin in Ireland. After they married the parties set up the family home in Dublin. This house was held in the joint names of the parties subject to a mortgage. There were three children of the marriage, now aged respectively 19, 17and 14 1/2. Prior to 1987 the Respondent who is a qualified engineer and also an accountant was in the employment of a major international accountancy firm in this country. In that year he changed his employment. He was employed by "X" Limited and appointed by them to the position of Project Manager responsible for the company's undertakings in Holland. It was necessary for the Respondent and the family to move to Holland as the position which the Respondent held required his supervision of the company's undertakings in that country. By agreement with his wife the family home in Ireland was sold and in April 1987 the Respondent moved to Holland and took up his appointment there with "X" Limited. As the parties third child was expected at this time by agreement the Applicant remained on in Ireland until August and then followed the Respondent to Holland. At the time when the family moved to Holland the tax regime in Ireland was what was described at the hearing as "penal". In contrast significant tax advantages were available to someone coming to work in that country, such as the Respondent. These advantages lasted for the first five years of such a person's employment. The term of the Respondent's employment with "X" in Holland was five years subject however to review at that time and the possibility that his appointment would be renewed. In Holland the parties acquired a family house in "Y". This area was specifically selected for the family home because it was a semi rural area and was away from the area frequented by persons who were described as "ex pats" at the hearing. A conscious decision was made by the parties that the time that they would spend in Holland was to be a worthwhile experience and it was their intention to become fully integrated into the life and culture of the country. They recognised that tourists and persons employed in multi national corporations resided in urban areas and they determined that they would avoid this type of company but instead would integrate themselves with the Dutch community. They both learnt Dutch and speak the language fluently. They enrolled their family into primary schools in the locality and they encouraged them to integrate with the children in the schools. The elder boy became fluent in Dutch. The Respondent because of his fluency in Dutch got on well at his work which he conducted in the Dutch language. He liked the Dutch people with whom he associated. His work carried a heavy load of responsibility and he was extremely successful. I am in no doubt that each of the parties is extremely able and highly intelligent. The...