T (D) v L (F)

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 29 July 2008
• Neutral Citation: [2008] IESC 48
• Court: Supreme Court
• Docket Number: [S.C. No. 137 of 2008],Record No 137/2006
• Date: 29 July 2008

THE SUPREME COURT

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J

Record No 137/2006

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) ACT 1976 (AS AMENDED) AND IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 1996

BETWEEN

D.T.

APPLICANT/RESPONDENT

AND

F. L.

RESPONDENT/APPELLANT

Abstract:

Family law - European Union law - Recognition of foreign divorce - Dutch divorce from 1994 - Brussels Convention - Council Regulation EC No. 44/2001 Council Regulation EC 1347/2000 Brussels II bis - Henderson v. Henderson - Preliminary reference - Article 234 EC

Facts: In 2000 the respondent applied for a decree of judicial separation. The issue arose as to whether a decree of divorce obtained from a Dutch court by him in 1994 was entitled to recognition in the Irish courts. It was claimed that the ancillary orders sought by the respondent in her claim conflicted with the maintenance aspect of the Dutch divorce judgment. The appellant argued the Irish courts did not have jurisdiction as to the claim and sought to rely on the provisions of the Brussels Convention, Brussels I and Brussels JJ in support thereof. The High Court refused the application for an order that the court would decline jurisdiction and an appeal was made to the Supreme Court on the question of the jurisdiction of the court.

Held by the Supreme Court (per Fennelly J; Denham, Hardiman, Geoghegan & Kearns JJ concurring) that the judgment of the Dutch Court was not entitled to recognition in this State on account of its date, prior to the entry into force of Brussels I or II. All of the grounds of appeal would be rejected. There was no merit in referring a question to the Court of Justice pursuant to Article 234 EC. Eight years had passed since the initiation of the proceedings and further delay would be not appropriate in the proceedings.

Reporter: E.F.

1 1. The respondent wife commenced this action for judicial separation from the appellant, her husband, eight years ago. The appellant first claimed that the Irish courts should recognise his Dutch divorce of 1994 and that the Irish courts should decline jurisdiction on that ground. He failed in the High Court and in this Court, whereupon he commenced this second procedure by way of a motion in which he asks the courts to decline jurisdiction in respect of the ancillary reliefs sought by the respondent. He relies on the Brussels Convention, the several Community regulations, known as Brussels I, II and II bis, and a wide range of provisions of the EC Treaty.

2 2. The High Court (McKechnie J) rejected all his arguments. He presents a wide-ranging second appeal to this Court.

3 3. The action has yet to be heard. The appellant wishes the Court to refer a number of questions of interpretation for preliminary ruling to the Court of Justice of the European Communities.

Facts

4 4. The appellant and the respondent are Irish citizens.

5 5. They were married to each other on the 30th August, 1980, in Dublin.

6 6. The three children of the marriage are now of full age.

7 7. From 1980 to 1987 approximately the parties jointly owned a family home in Dublin. In 1987 the appellant

commenced employment with a large Irish company. In April, 1987 he took up a position with a subsidiary of that company in the Netherlands. The family home was sold in Ireland. The parties and their children resided in Holland from1987 until 1992. During this time unhappy differences developed in the marriage.

8 8. The respondent returned to Ireland with the children in the summer of 1992 in order to enable them to reintegrate into the Irish school system.

9 9. On the 26th October, 1993, solicitors acting for the respondent in the Netherlands wrote to the appellant seeking maintenance and financial support. In December of 1993 she caused a petition to be served on the appellant in the Netherlands, where the appellant was still resident.

10 10. On the 2nd February, 1994, an interim maintenance order was made by the County Court of Rotterdam. Under Dutch law the respondent had four weeks from that date within which to institute proceedings for divorce which would have enabled the interim maintenance order to remain in place and continue to be enforceable. She never instituted such proceedings.

11 11. On the 2nd March, 1994, the appellant instituted proceedings in the District Court of Rotterdam seeking a divorce. The appellant returned to Ireland permanently around the 28th May, 1994, to take up a senior executive position with an Irish company, which he continues to hold.

12 12. On the12th September, 1994, the District Court of Rotterdam granted a decree of divorce. The judgment recited provisions of Dutch law to the effect that the court was empowered in the matter, as the appellant had lived for more than twelve months in the Netherlands and that the respondent did not object. The judgment of the Court included provision for maintenance for the respondent but stated that it had no authority to make provision for custody or maintenance of the children. I will refer to this judgment as "the judgment of the Dutch Court."

Irish legal proceedings

13 13. On the 6th July, 2000, the respondent commenced the present proceedings by Special Summons in the High Court. She applies for a decree of judicial separation pursuant to section 2(1)(a) or (b) of the Judicial Separation and Family Law Reform Act 1989 or, in the alternative, a decree of

divorce pursuant to the Family Law (Divorce) Act 1996.

14 14. She also seeks ancillary orders under headings lettered (a) to (v) in the Summons. Heading (f) relating to custody of children is no longer relevant as the children of the marriage are now of full age.

15 15. The appellant filed a replying affidavit sworn on the 20th November, 2000. He made specific response to a claim by the respondent that the decree of divorce granted in the Netherlands in September, 1994 was not entitled to recognition in the state. He also referred to a separation agreement reached between the parties in the Netherlands on the 12th September,1994. He argued, in his affidavit, that the High Court should determine, as a preliminary issue, whether that decree of divorce was entitled to such recognition. The sole legal issue raised by the appellant in his affidavit of reply was that the Irish courts should recognise his Dutch divorce. He said that the natural consequence of such recognition would be to prevent the respondent from maintaining the proceedings. He said that the respondent's claim to be entitled to maintain the proceedings in this jurisdiction ought to be refused.

16 16.At the time of swearing of his affidavit, the appellant could have put forward any case based on the Brussels Convention of 1968. None of the Brussels Regulations, later discussed, had come into force at that time.

17 17. Save as described hereunder, no further step has been taken in the judicial separation proceedings. In particular, the respondent has not filed a statement of means pursuant to Rules of the Superior Courts (No. 3) of 1997 (S.I. No 343of 1997), as required by order of the Master of the High Court dated the 24th January, 2001. It seems that the respondent has agreed to leave this matter in abeyance while maintenance is being paid.

18 18. On the 6th July, 2001, the High Court, on the application of the respondent, made an order by consent of both parties that the issue which had been raised by the appellant, namely, whether the Dutch divorce decree of the 12th September, 1994, was entitled to recognition in this State pursuant to section 29(1) of the Family Law Act 1995, be tried as a preliminary issue. The parties contemporaneously reached agreement on interim maintenance to be paid to the respondent, without prejudice to the appellant's objections that the matter was not properly before the court. The respondent agreed not to seek

financial discovery or the filing by the appellant of an affidavit of means.

19 19. In a judgment of the 23rd November, 2001, following a five-day hearing, Morris P, determined that the appellant was not entitled to a declaration that the decree of divorce granted on the 12th September, 1994, under the civil law of the Netherlands was entitled to recognition in the State.

20 20. On the 4th February, 2002, the appellant appealed to this Court against the judgment and order of Morris P.

21 21. On the 26th November, 2003, this Court dismissed that appeal. Keane C. J. delivered the unanimous judgment of the Court, holding that it would not have been possible for the High Court to hold that the appellant had acquired a Dutch domicile of choice.

22 22. The decisions of the High Court and the Supreme Court were based on the rule of private international law applicable in Irish law, as modified by section 5(1) of the Domicile and Recognition of Foreign Divorces Act 1986, that a decree of divorce granted by the courts of another jurisdiction would be recognised in the State only if granted in a foreign country where either spouse was domiciled. The country of domicile of origin of the appellant was Ireland. The appellant contended that, at the time of the Dutch divorce decree, he had acquired a domicile of choice in the Netherlands. This Court unanimously rejected that argument.

23 23. On the 16th January, 2004, the respondent issued a notice of motion seeking an order that the appellant should not be entitled to defend the proceedings by reason of his failure to file an affidavit of means. She complained of hardship arising from the inordinate delays in the proceedings.

24 24. On the 28th January, 2004, some two months after the decision of this Court, the appellant issued a new notice of motion seeking orders that...