T(D) v L(F)

JurisdictionIreland
CourtSupreme Court
JudgeKeane C.J.
Judgment Date26 November 2003
Neutral Citation[2003] IESC 59
Date26 November 2003

[2003] IESC 59

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

Hardiman J.

Geoghegan J.

29 & 130/02
T(D) v L(F)

BETWEEN

D.T.
APPLICANT / RESPONDENT

AND

F.L.
RESPONDENT / APPELLANT

AND

THE ATTORNEY GENERAL
NOTICE PARTY

Citations:

CONSTITUTION

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

W V W 1993 2 IR 476

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

MCG (G) V W (D) & R (A) 2000 1 IR 96 2000 1 ILRM 107 2003 FAM LJ 16 1999 17 5217

FAMILY LAW (DIVORCE) ACT 1996

FAMILY LAW ACT 1995 S29(1)(D)

FAMILY LAW ACT 1995 S29(1)(E)

SILLAR, RE: HURLEY V WINBUSH 1956 IR 344

T V T 1983 IR 29

Synopsis:

FAMILY LAW

Foreign divorce

Recognition - Domicile - International Law - Marriage - Residence

- Whether divorce granted in Netherlands valid having regard to domicile of the respondent - Whether respondent had abandoned domicile of origin - The Domicile and Recognition of Foreign Divorces Act, 1986 - Family Law (Divorce) Act, 1996 - Family Law Act, 1995 (29 & 130/2002 - Supreme Court - 26/11/2003)

T & L v Attorney General - [2004] 1 ILRM 509

The applicant and the respondent are Irish citizens who were married in Ireland. Eight years after they mated the respondent accepted an “open-ended” position with a Dutch subsidary of a major Irish company. Consequently the applicant and respondent emigrated to the Netherlands, where they lived with their three children unitl 1992. It was around that time difficulties arose in the marriage and as a result the applicant retumed to Ireland with the children that same year. In March, 1994, the respondent instituted divorce proceedings in the Netherlands and in September, some 4 months after the respondent had returned to Ireland to pursue a new job a decree of divorce was granted by the Dutch court.

On 6th July, 2000, the applicant instituted proceedings in the High Court claiming a decree of judicial separation and certain ancillary reliefs. An order was made by consent to try as a preliminary issue the question of whether or not the divorce obtained by the respondent pursuant to the civil law of the Netherlands is entitled to recognition in this State pursuant to section 29(l)(d) and/or (e) of the Family Law Act, 1995. The respondent based his case on two main arguments. Firstly, it was submitted that, at the time the divorce proceedings were instituted in the Dutch Courts, the respondent had acquired a domicile of choice in the Netherlands. Accordingly, pursuant to the rule contained in Section 5(1) of The Domicile and Recognition of Foreign Divorces Act, 1986, which states that a divorce shall be recognised if granted in the counrty where either spouse is domiciled, he argued that the divorce granted by the Dutch court was entitled to recognition in this jurisdiction. Secondly, the respondent submitted that, if he had not acquired a domicile of choice in the Netherlands, the court should apply the modified rule of private international law adopted by the High Court in the case of

C.McG. v D. W

[2000] 1 IR 96. In this regard the respondent argued that since it was accepted he had been ordinarily resident in the Netherlands for a period in excess of one year at the time the proceedings were instituted, the decree granted by the Dutch court was entitled to recognition in this jurisdiction. Morris P. in the HighCourt rejected both aspects of the respondent’s case. The respondent appealed this decision, claiming that the trial judge erred in law and fact. However, the respondent limited his appeal to the issue of domicile only.

Held by the Supreme Court (Keane C.J., Denham, Murray, Hardiman, Geoghegan JJ)

in refusing the respondent’s appeal: 1. That in determing whether one’s domicile of origin has been replaced by a domicile of choice it is necessary to infer from all the circumstances that one has formed the settled purpose of residing indefinitely in the alleged domicile of choice. That is to say that one has decided to set up his/her permanent home in that country. This involves an intention to abandon one’s former domicile.

In Re Sillar, Hurley v Winbush [1956] IR 344 followed.

2. That the respondents decision to leave his country of origin and take up employment in the Netherlands for a period of 7 years was not sufficient to discharge the onus of establishing that he had abandoned his domicile of origin and acquired a domicile of choice.

F

v

F. [1983] IR 29 followed.

3. That the fact that the respondent, at the date of instituting divorce proceedings had no immediate intention of returning to Ireland was not sufficient to prove that he had formed the settled purpose of residing indefinitely in the Netherlands. The continued residence of the parties in the Netherlands was inextricably linked to their then personal circumstances and there was no evidence to show that the respondent would not have returned to Ireland permanently if these circumstances changed. CM v TM [1991] ILRM 268 followed.

4. That the relevant date for determining the respondent’s state of mind was the date of the initiation of the divorce proceedings.

5. That although a declaration as to domicile is a factor for consideration, little weight should be attached to the respondent’s written notification to his lawyer that he intended to change his domicile to

the Netherlands in light of the other evidence . The context and form of the declaration is important and in this case the notification was written by the respondent in the context of the divorce proceedings.

6. Obiter that when considering all the surrounding circumstances it would be unthinkable to disregard the significant factor that at the time the respondent initiated the divorce proceedings he had been offered the position in Ireland, which he subsequently accepted and accordingly he had abanded any intention to permanently remain in the Netherlands at that time.

Keane C.J.
1

Until the coming into force of the Constitution in 1937, the principles of private international law applied by the courts in Ireland included the rule known as the "dependant domicile" of a wife. This meant, in effect, that in cases where the rights of parties fell to be determined in accordance with the principles of private international law and, in particular, by a determination as to where one or both of the parties was domiciled at a particular time, the domicile of a wife was regarded, for all such purposes, as being the same as the domicile of her husband. However, in C.M. -v- T.M. [1991]ILRM 268, the High Court (Barr J.) held that the rule in question was inconsistent with the provisions of the Constitution and had not survived its enactment. That statement of the law was upheld by this court in W. -v- W. [1993] 2 IR 476.

2

So far as the recognition of decrees of divorce granted by courts of a foreign jurisdiction was concerned, the Irish courts applied the principle of private international law that such a divorce would be recognised if it was granted by the court of a jurisdiction in which both parties where domiciled. The result was that, until the clarification of the law inC.M.-v- T.M., a divorce granted by a court in a jurisdiction where the husband was domiciled would be afforded recognition because that was also treated as the domicile of his wife.

3

Section 5(1) of The Domicile and Recognition of Foreign Divorces Act,1986, (which did not apply to the divorce at issue in CM -v- T.M) provided that

"For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled."

4

InC.McG. -v- D.W. & Anor [2000] 1 IR 96,it was held by the High Court (McGuinness J.) that, where the decree of a foreign court was granted prior to the coming into force of s. 5(1) of the 1986 Act, the issue as to the recognition of a foreign divorce was still governed by the common law rules of private international law. The learned judge in that case held that it was open to the Irish courts in the case of foreign divorces granted before the 2nd October, 1986 to modify, where necessary, the recognition rules based on the common domicile of spouses. She was satisfied that, having regard to the relevant provisions of the Family Law (Divorce) Act,1996and the Family Law Act,1995, the courts should adopt a policy of extending recognition to decrees of foreign courts where either of the spouses was ordinarily resident in the foreign jurisdiction for a period of one year prior to the institution of the relevant proceedings.

5

The applicant and the respondent in the present proceedings (hereafter respectively "the wife" and "the husband") are Irish citizens who were married in Ireland on the 30th August, 1980. In the year 1988, they emigrated to the Netherlands with their three children and lived there until 1992. At that point, difficulties had developed in the marriage and, in circumstances which were to some extent the subject of dispute, the wife returned to Ireland in that year with the children. The following year, she instituted divorce proceedings in the Netherlands in which she also sought an order for payment of interim maintenance. An order in her favour for the making of interim maintenance payments was made by the Dutch court in February 1994, but thereafter she did not pursue the application for a divorce. On the 2nd March, 1994, however, the husband instituted divorce proceedings in the Netherlands and a decree of divorce was granted by the Dutch court on 12th September, 1994.

6

On the 6th July, 2000, proceedings were instituted by the wife in the High Court claiming a decree of judicial separation and certain ancillary reliefs. An order was made by consent that

"a preliminary issue be tried herein the issue being “whether the [husband] is or is not entitled to a declaration that the validity of a...

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