T. v L

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 09 May 2018
• Neutral Citation: [2018] IESC 26
• Docket Number: [Record No. 2016/97]
• Court: Supreme Court
• Date: 09 May 2018

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

T.

APPLICANT/RESPONDENT

AND

L.

RESPONDENT/APPELLANT

[2018] IESC 26

[Record No. 2016/97]

THE SUPREME COURT

Divorce – Jurisdiction – European law – Appellant seeking to appeal against a decree of divorce – Whether the Irish courts could properly, as a matter of European Union law, grant a decree of divorce in all the circumstances of the case

Facts: The appellant appealed to the Supreme Court from a decision of the Court of Appeal of the 3rd December, 2015 dismissing his appeal against an order of the High Court (Abbott J) of the 10th February, 2012 in which the respondent was granted a decree of divorce and ancillary reliefs. Leave was granted in respect of the following two issues: (a) whether the Court of Appeal was correct to hold that the Irish courts could properly, as a matter of European Union law, grant a decree of divorce in all the circumstances of the case; and (b) in the event that the appellant succeeds on ground (a), and only in that event, whether the order for costs made by the Court of Appeal should stand. The appellant maintained that the Irish courts do not have jurisdiction to grant a judgment in divorce proceedings because to do so would be to grant a judgment which is irreconcilable with the earlier decision of the District Court of the Member State. In 1994 when that divorce was granted, it was not possible to obtain a divorce in Ireland as the Constitutional prohibition on divorce had not yet been removed.

Held by Dunne J that the appellant’s divorce from the Member State could not have been recognised in Ireland under the common law rules of private international law, a point which would have been readily ascertainable. Apart from the common law rules applicable, Dunne J held that there was no international Convention, treaty or agreement in place at that time that could have availed the appellant in the recognition of his divorce. Dunne J held that the subsequent introduction of EU measures for the recognition of divorce in the each Member State did not assist the appellant as those measures clearly did not have effect retrospectively.

Dunne J held that she would dismiss the appeal.

Appeal dismissed.

Judgment of Ms. Justice Dunne delivered the 9th day of May 2018

Background

1 This is an appeal by L. (hereinafter referred to as Mr. L.) from a decision of the Court of Appeal of the 3rd December, 2015 dismissing Mr. L's appeal against an order of the High Court (Abbott J.) of the 10th February, 2012 in which T. (hereinafter referred to as Ms. T.) was granted a decree of divorce and ancillary reliefs.

2 By its determination dated the 10th March, 2014, this Court identified the issue of general public importance as follows:

‘While it is correct to state, as was pointed out in the respondent's notice, that this Court has already definitively determined that the relevant foreign divorce cannot be recognised as a matter of Irish private international law, the issue which was raised on behalf of Mr. L. in the Court of Appeal was as to whether, notwithstanding that situation, relevant provisions of the Union treaties, not least those introduced by the Lisbon Treaty, gives rise to a situation where an Irish court cannot or should not grant a decree of divorce which would be inconsistent with a previous decree granted in another jurisdiction.’

3 Thus leave was granted in respect of the following two issues:

‘(a) whether the Court of Appeal was correct to hold that the Irish courts could properly, as a matter of European Union law, grant a decree of divorce in all the circumstances of this case; and

(b) in the event that Mr. L. succeeds on ground (a), and only in that event, whether the order for costs made by the Court of Appeal should stand.’

4 It is necessary to set out the factual background in order to understand how the issues in respect of which leave was granted have arisen. The parties herein are Irish citizens. They married in August 1980 in Dublin and have children who are now of full age. The parties moved to an EU Member State in 1987 when Mr. L. took up employment there. The family lived together in that Member State from 1987 until 1992. Unhappy differences arose in the marriage during that period and ultimately Ms. T. returned to Ireland with the children in the summer of 1992. In October 1993 solicitors acting for Ms. T. in that Member State wrote to Mr. L. seeking maintenance and financial support. In December 1993 Ms. T. caused a petition to be served on Mr. L. in the Member State. He was still resident there at that stage. On the 2nd February, 1994 an interim maintenance order was made by the County Court of the Member State. On the 2nd March, 1994 Mr. L. instituted proceedings in the District Court of the Member State seeking a divorce. He returned to Ireland permanently around the 28th May, 1994 to take up a position with an Irish company. On the 12th September, 1994 the District Court of the Member State granted a decree of divorce. In the judgment of the High Court of the 23rd November, 2001, (Morris J.) the Court set out in its judgment the circumstances in which the divorce came to be granted at page 11 of the judgment as follows:

‘The applicant (Ms. T.) has given comprehensive evidence of the way in which she says the respondent (Mr. L.) deprived her and the children of sufficient funds to keep them in any degree of comfort. She said that as a last resort she took advice and was in summary advised that it was open to her to apply to the Court in [the Member State] for what would be described in this jurisdiction as interim maintenance. This jurisdiction was available to her because the respondent was resident in [the Member State]. Based on this advice she contacted a lawyer [in the Member State] and instituted proceedings in [that State] for the recovery of interim maintenance. She succeeded in obtaining such an order. It is, however, a condition of the granting of such an order that the applicant in such proceedings will proceed to prosecute the case to seek a divorce. If this is not done then the order for interim maintenance lapses. The applicant having obtained her order for interim maintenance took no further active steps in the proceedings. I am satisfied that the respondent being aware of the proceedings availed of their existence to settle up outstanding matters and with the co-operation of the wife the necessary steps were taken so that judgment was entered granting the divorce in [the Member State] on the 13th July, 1994. It is common case that the Court in [the Member State] will accept the jurisdiction based on the residence of one of the parties. Outstanding issues between the parties such as maintenance and access to children are dealt with by way of “a convention” which is agreed between the parties. Such convention was in fact entered into between the parties on the 13th July, 1994.

The applicant has told the Court that at the time when she embarked on these proceedings she was confused and the only realistic consideration which she gave to the matter was the urgent need which she saw to have provision made for her and for the children. She says that they were without support to the extent that they were driven to seek social welfare payments in Ireland. The respondent denies that there was ever any shortage of money and points to the fact that leading up to the time when the divorce covenant was entered into he had provided the applicant with sufficient funds to pay a deposit on a house which was not used for this purpose but was devoted towards maintenance of the applicant and the children.’

5 Both parties are agreed that the date of the divorce was the 12th September, 1994, notwithstanding the date referred to in the passage cited above. It is apparent that Ms. T. did not object to the making of the order for divorce. It is also the case that the decree of divorce together with the agreement between the parties as referenced in the convention did not provide for an order for maintenance in respect of the children of the marriage on the basis that the court of the Member State was of the view that it had no authority to make provision for custody or maintenance of the children as they were no longer resident in the Member State by 1994. Mr. L. has pointed out that the terms of the convention were incorporated into the divorce and that although the court of the Member State did not have jurisdiction to deal with questions of custody or child maintenance it was provided in the agreement between the parties that there was to be a monthly payment of IR£183 to Ms. T. as a contribution by Mr. L. towards the costs of care and upbringing of the children. The agreement also provided for the payment of school fees and also created a joint bank account for the benefit of the children into which he paid the sum of IR£12,747.50 to provide for future disbursements for the children's benefit. (I should point out that the convention referred to by Morris J. in the passage above is described as the divorce agreement in the pleadings).

The history of the proceedings

6 It would also be helpful to set out the history of these proceedings. Ms. T. commenced these proceedings by way of special summons in July of 2000. Ms. T. sought a decree of judicial separation pursuant to the provisions of the Judicial Separation and Family Law Reform Act of 1989 or in the alternative a decree of divorce pursuant to the provisions of the Family Law (Divorce) Act of 1996. Following the issue of the proceedings, a preliminary issue was tried on the application of Mr. L., namely, whether Mr. L. ‘is or is not entitled to a declaration that the...