T v T

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1983
• Docket Number: [S.C. No. 217 of 1981]
• Date: 01 January 1983

Supreme Court

[S.C. No. 217 of 1981]

T. v. T.

T

and

T

Cases mentioned in this report:—

¹ Bank of Ireland v. Caffin [1971] I.R. 123.

² Gaffney v. Gaffney [1975] I.R. 133.

³ Buckley v. Buckley (High Court: 31st July, 1980).

⁴ In re Joyce, Corbet v. Fagan [1946] I.R. 277.

⁵ In re Sillar, Hurley v. Wimbush [1956] I.R. 344.

⁶ In re Adams [1967] I.R. 424.

Conflict of laws - Marriage - Dissolution - Foreign decree of divorce - Jurisdiction of foreign court - Domicil of husband - Parties living in Ireland - Case stated - District Court - Jurisdiction - District Justice functus officio - Summary Jurisdiction Act, 1857 (20 & 21 Vict. c. 43). ss. 2, 6, 7 - Courts (Supplemental Provisions) Act, 1961 (No. 39), s. 51.

Appeal from the High Court.

The husband appealed from the judgment and order of the High Court (D'Arcy J.) made on the 27th July, 1981, at the hearing of a Case stated by a District Justice, at the request of the respondent wife, pursuant to s. 2 of the Summary Jurisdiction Act, 1857 (as extended) after the determination by the District Justice of an application by the husband for an order varying the terms of a maintenance order which the wife had obtained.

The husband and wife were married in London on the 20th April, 1966, but from the year 1974 they lived in Ireland with their children. On the 15th February, 1977, the husband filed in the Family Division of the High Court of Justice in England a petition for a divorce a vinculo. Notice of the petition was served on the wife but she did not file an answer or defend the divorce proceedings. The husband obtained a decree nisi on the 5th July, 1978, and the decree became absolute on the 23rd August, 1978. On the 5th July, 1979, the husband applied to a District Justice for an order varying the terms of a maintenance order by excluding therefrom a term requiring the husband to pay certain sums to the wife. The District Justice made the order sought by the husband and the wife appealed to the High Court by way of a Case which was stated and signed by the District Justice pursuant to s. 2 of the Summary Jurisdiction Act, 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961. At the hearing of the Case Stated on the 23rd March, 1981, the High Court judge remitted the matter to the District Justice and requested him to decide the domicil of the husband on the 23rd August, 1978. Having heard further evidence, the District Justice replied stating that he found the husband to have been domiciled in Ireland on that date. On the 27th July, 1981, the High Court judge delivered his judgment upon the point of law raised in the Case Stated and ruled that on the 23rd August, 1978, the husband had been domiciled in Ireland and that the wife's appeal by Case Stated should be allowed. The husband appealed to the Supreme Court from the judgment and order of the High Court.

Section 2 of the Summary Jurisdiction Act, 1857, commences with the words "After the hearing and determination by a justice or justices of the peace of any information or complaint, which he or they have power to determine in a summary way . . ." The section then confers upon a party who is dissatisfied with the determination of such a justice as being erroneous in point of law a power to request the justice to state and sign a Case setting out the facts and the grounds of the justice's determination for the opinion thereon of a superior court. In dealing with the procedure to be adopted in bringing the Case before a superior court, the section refers to the party applying for a Case as an appellant and to the proceedings initiated by him pursuant to the section as an appeal. The jurisdiction of a justice of the peace under the Act of 1857 is now exercisable by a District Justice and a Case so stated is now transmitted to the High Court for its opinion. By s. 51, sub-s. 1, of the Courts (Supplemental Provisions) Act, 1961, the provisions of s. 2 of the Act of 1857 are extended so as to enable any party to any proceedings whatsoever "heard and determined" by a justice of the District Court (other than proceedings relating...