TF v Ireland

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 14 July 1995
• Date: 14 July 1995
• Docket Number: [1991 No. 13402P]

T.F. v. Ireland

T.F.

Plaintiff

and

Ireland, The Attorney General and M.F.

Defendants

[1991 No. 13402P]

High Court

Supreme Court

Constitution - Family - Judicial separation - Personal rights - Statute providing for grant of decree of judicial separation where normal marital relationship not existing for period of one year - Whether unconstitutional impairment of personal rights in relation to marriage - Whether failure by State to guard institution of marriage - Judicial Separation and Family Law Reform Act, 1989 (No. 6), s. 2, sub-s. 1 (f) - Constitution of Ireland, 1937, Article 40, s. 3 and Article 41, s. 3.

Constitution - Personal rights - Whether rights of individual relating to marriage among personal rights protected by Constitution - Constitution of Ireland, 1937, Article 40, s. 3.

Constitution - Personal rights - Property - Court granting decree of judicial separation empowered to confer exclusive right of residence in family home on one spouse - Whether unconstitutional interference with property rights of other spouse - Judicial Separation and Family Law Reform Act, 1989 (No. 6), s. 16 (a) - Constitution of Ireland, 1937, Article 40, s. 3.

Constitution - Marriage - Constitutional guarantee to guard and protect marriage - Whether considerations of common good relevant - Constitution of Ireland, 1937, Article 41.

Constitution - Interpretation - Judicial function - Whether expert theological evidence admissible in respect of interpretation of Constitution.

Family law - Judicial separation - Marriage - Breakdown - Nature of "marriage" - Nature of "breakdown" - Whether consent of spouse to continuation of marriage relationship an essential ingredient of "marriage" - Judicial Separation and Family Law Reform Act, 1989 (No. 6), s. 2, sub-s. 1 (f).

Family law - Family home - Role of family home.

Article 40, s. 3, sub-ss. 1 and 2 of the Constitution of Ireland, 1937, provide as follows:—

"The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen."

Article 41, s. 3, sub-ss. 1 and 2 provide as follows:—

"The State pledges itself to guard with special care the institution of Marriage on which the Family is founded, and to protect it against attack.

No law shall be enacted providing for the grant of a dissolution of marriage."

Section 3, sub-s. 1 provides that a court "shall", subject to the provisions of sub-s. 2 and ss. 5 and 6, grant a decree of judicial separation where it is satisfied that any of the grounds specified in s. 2, sub-s. 1 of the Act have been proved. Among those grounds is that specified at sub-s. 1 (f):—

"that the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application."

Section 3, sub-s. 2 provides that a court shall not grant a decree of judicial separation unless proper provision is made by the parties or in the order of the court for the welfare of the dependent children of the family. By ss. 5 and 6 of the Act of 1989, a solicitor acting for either party in an application for a decree of judicial separation shall certify that he has discussed with that party the possibility of a reconciliation and provided the names and addresses of persons qualified to help in effecting a reconciliation. Section 7 provides for the adjournment of proceedings under the Act in order to attempt a reconciliation.

Part II of the Act of 1989 empowers a court which has granted a decree of judicial separation to make a range of ancillary orders relating to the property of the spouses, the custody of the children of the marriage and the provision of financial support by one spouse for another. Among the orders which such a court may make is an order under s. 16 (a):—

". . . conferring on one spouse either for life or for such other period (definite or contingent) as the court may specify the right to occupy the family home to the exclusion of the other spouse."

Sections 19 and 20 specify the matters which the court must take into account in exercising its jurisdiction under s. 16 (a), including the provision of adequate and secure accommodation for any dependent child of the family.

By s. 22, the court may on the application of either spouse vary or discharge an order made under section 16 (a).

The third defendant had obtained in the Circuit Court a decree of judicial separation from her husband, the plaintiff, on the ground specified in s. 2, sub-s. 1 (f); an order pursuant to s. 16 (a) that the plaintiff "be permanently barred from entering the family home"; and an order giving her custody of the children of the family.

Prior to the conclusion of his appeal in those proceedings, the plaintiff instituted a challenge to the constitutional validity of the Act of 1989. He contended that s. 2, sub-s. 1 (f) set too low a threshold for the granting of an order which would have the effect of impairing both his own constitutional rights in relation to his marriage and the institution of marriage generally, in that one year was an insufficient period to allow for effecting a reconciliation. He further contended that s. 16 (a) and s. 19 was an unconstitutional attack on his property rights.

In the course of the hearing, the High Court declined to hear expert evidence from theologians as to the rights arising under natural moral law, and as to the essential features of a Christian marriage.

Held by Murphy J., in dismissing the plaintiff's claim, 1, that while the concept of marriage referred to in the Constitution might well be derived from the Christian concept of marriage, the obligation of the State and the rights of parties in relation to marriage were now contained in the Constitution and the laws of Ireland, so that it was for the courts to interpret those provisions, and not to abdicate that function to any expert.

McGee v. The Attorney General [1974] I.R. 284 applied; The State (Ryan) v. Lennon[1935] I.R. 170 considered.

2. That all of the basic rights deriving from the relationship of marriage, such as the right to procreate, to co-habit, to give and receive moral and financial support and to make and adhere to decisions in relation to family property were protected by Article 40, s. 3 of the Constitution.

Murray v. Ireland [1985] I.R. 532 and In re the Matrimonial Home Bill, 1993[1994] 1 I.R. 305 considered.

3. That these rights were not absolute or unqualified, and their exercise might be regulated by the Oireachtas if the common good so required; that in dealing with controversial social, economic and moral matters on which views could be expected to change from generation to generation, the decision of the Oireachtas, in reconciling the exercise of personal rights with the claims of the common good, should prevail unless it was oppressive or not reasonably proportionate.

Ryan v. The Attorney General [1965] I.R. 294 applied.

4. That in the interpretation and application of the Constitution, regard must be had to the extent to which ideas and values prevailing at one period had been conditioned by the passage of time.

The State (Healy) v. Donoghue [1976] I.R. 325 applied.

5. That the foregoing was particularly apposite with regard to the rights of parties to a marriage and their relationship one to another; developments in legal, social and economic conditions had brought about a change from the position where a spouse — usually the wife — had no practical alternative to enduring a relationship which by any reasonable standards would have been wholly unacceptable, to the position where it was no longer necessary for a married woman to live in an unacceptable state of bondage; and that the essence of the reforms contained in the Act of 1989 was to take account of the constitutional, social and economic change since the passing of the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870.

Evans v. Evans (1790) 1 Hag. Con. 35; The State (Director of Public Prosecutions) v. Walsh[1981] I.R. 412; M. (C.) v. M. (T.)[1987] I.R. 152; McKinley v. The Minister for Defence[1992] 2 I.R. 333 and W. v. W. [1993] I.L.R.M. 294 considered.

6. That there were grave difficulties in providing a suitable objective criterion for measuring success or failure in reconciliation therapy; that there were important distinctions to be drawn between the nature of the problems encountered in different cases; above all the issue arose of whether both parties were sincere in their attempts to achieve reconciliation or were simply attending as a matter of form; so that while continued counselling for a period of more than one year might be advantageous, it appeared from the evidence that the Oireachtas had been justified in concluding that one year was a reasonable period to allow the parties to resolve their problems, particularly in the light of the fact that the separation proceedings could be adjourned if the parties so desired.

7. That the essential ingredients of a valid marriage and the elements which must continue to exist to enable it to be described as a functioning marriage as opposed to one which, in the words of s. 2, sub-s. 1 (f) had "broken down", were difficult to define and would exist in varying degrees in different marriages; but that those essential elements must include the physical capacity to consummate the marriage and the creation of an emotional and psychological relationship between the spouses.

Murray v. Ireland [1985] I.R. 532,D. v. C.[1984] I.L.R.M. 173 and U.F. v. J.C.[1991] 2 I.R. 330 applied.

8. That while the word "breakdown" might be appropriate to describe a variety...