W v W

JurisdictionIreland
CourtSupreme Court
JudgeBLAYNEY J.,EGAN J.,HEDERMAN J.
Judgment Date01 January 1993
Docket Number[S.C. No. 6 of 1992],9/92
Date01 January 1993

1992 WJSC-SC 4362

THE SUPREME COURT

Finlay, C.J.

Hederman, J.

O'Flaherty, J.

Egan, J.

Blayney, J.

9/92
W v. W
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY
LAW REFORM ACT, 1989.

BETWEEN:

W.
PLAINTIFF
-and-
W.
DEFENDANT

Citations:

COURTS OF JUSTICE ACT 1936 S38(3)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989

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

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONSTITUTION ART 41

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986

MAYO PERROTT V MAYO PERROTT 1958 IR 336

BANK OF IRELAND V CAFFIN 1971 IR 123

GAFFNEY V GAFFNEY 1975 IR 133

MURPHY V AG 1982 IR 241

CONSTITUTION ART 50

D (K E) ORSE C V C (M) 1985 IR 697

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

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5(6)

INDYKA V INDYKA 1969 1 AC 33

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S1(2)

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S2

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S3

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5(3)

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5(4)

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S5(5)

CONSTITUTION ART 29.3

SUCCESSION ACT 1965

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986 S1

LE MESURIER V LE MESURIER 1895 AC 517

MURPHY V AG 1982 IR 307

QUINNS SUPERMARKET V AG 1972 IR 1

NICOLAOU, STATE V AN BORD UCHTALA 1966 IR 567

TRAVERS V HOLLEY 1953 3 WLR 507

INDYKA V INDYKA 1966 3 AER 583

NEW SOUTH WALES MATRIMONIAL CAUSES ACT 1899 S16(a)

MATRIMONIAL CAUSES ACT 1937 (UK) S13

LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1949 S1(1)

CONSTITUTION ART 40.1.2

CONSTITUTION ART 41.3

M (C) V M (T) 1988 ILRM 456

Synopsis:

CONSTITUTION

Personal rights

Law - Equality - Wife - Domicile - Independence - Common law - Modification - Inconsistency with Constitution - Foreign divorce prior to 2nd October, 1986 - Husband domiciled in country in which divorce decree granted - Wife's divorce recognised in Ireland - (9/92 - Supreme Court - 16/12/92) - [1993] 2 I.R. 476

|W. v. W.|

V:F7

V:F7

DOMICILE

Test

Wife - Independence - Equality - Common law - Modification - Inconsistency with Constitution - Foreign divorce prior to 2nd October, 1986 - Husband domiciled in country in which divorce decree granted - Wife's divorce recognised in Ireland - (9/92 - Supreme Court - 16/12/92) - [1993] 2 I.R. 476 - [1993] ITR 473

|W. v. W.|

MARRIAGE

Divorce

Foreign decree - Recognition - Test - Domicile - Common-law rule - Wife's domicile dependent on that of husband - Recognition of foreign divorce conditional on both partners being domiciled in country of divorce court - Inequality before the law - Rule inconsistent with Constitution - Modern common-law test for recognition of foreign divorce - Constitution of Ireland, 1937, Articles 40, 50 - (9/92 - Supreme Court - 16/12/92) [1993] 2 I.R. 476

|W. v. W.|

1

JUDGMENT OF HEDERMAN J.delivered the 16th day of December 1992

2

This is a case stated by O'Hanlon J. at the request of Counsel for the Plaintiff and Counsel for the Defendant pursuant to Section 38(3) of the Courts of Justice Act, 1936.

A SUMMARY OF THE FACTS PROVED OR ADMITTED BEFORE THE LEARNED HIGHCOURT JUDGE.
3

The Plaintiff was born in County Offaly of Irish domiciled parents. Her domicile of origin is Irish. In 1957 the Plaintiff went to England where she remained in employment until May of 1965 when she returned to Ireland until October of 1965 when she again returned to England.

4

In December of 1965 the Plaintiff met one J.E., and on the 17th March 1966 married J.E. at the Registry Office at Stanford in the County of Stanford. There was no church marriage, the Plaintiff stating that she had rejected her religion for stated reasons.

5

The Plaintiff and her husband were both in permanent employment. There was issue of the marriage one child, born on the 4th March 1967.

6

Between 1968 and 1969 the Plaintiff's marriage to J.E. broke down. In 1969 the Plaintiff with her child went to Australia where she stayed with her sister, remaining in Australia for two years.

7

On the 20th July 1971 the Plaintiff returned to Ireland with her child as she wished the child to be brought up and educated in Ireland. The Plaintiff thereupon took up employment in an area close to where sheresided.

8

In or about the end of 1971 or beginning of 1972 the Plaintiff met the Defendant J.W., the Defendant having at all times been domiciled and resident in Ireland.

9

The Plaintiff and the Defendant's relationship became more intimate at a time when the Plaintiff was still legally married to J.E.

10

The Plaintiff sought the advice of a priest, a friend of the family, who advised her that while she was free to marry in the Church, it would be the wisest course from the point of view of the Civil Law, to obtain a divorce from her husband, J.E., who had remained at all times domiciled in England. The Plaintiff accordingly petitioned for a divorce in Bedford County Court. The divorce was not contested. A Decree Nisi was granted on the 12th September, 1972 and the Decree Absolute on the 25th October, 1972.

11

On the 7th May, 1973 the Plaintiff married the Defendant in a Roman Catholic Church in her native county.

12

The Plaintiff continued to live with her husband and to be employed. There were four children of the marriage.

13

In or about 1989 marital difficulties arose between the Plaintiff and the Defendant and proceedingswere brought by the Plaintiff in the District Court resulting in a Barring Order and a Maintenance Order being granted to thePlaintiff.

14

These Orders were appealed by the Defendant to the Circuit Court in February 1990.

15

On the 3rd January 1991 the Plaintiff issued an Equity Civil Bill under the Judicial Separation and Family Law Reform Act, 1989seeking a Decree of Judicial Separation and ancilliary Orders. The Defendant filed his Defence on the 22nd April 1991.

16

On the 9th May 1991 the matter came for Trial before the Circuit Court. At that Hearing Counsel for the Defendant submitted that the parties were not legally married owing to the fact that the Plaintiff was not domiciled in England in 1972 when the divorce proceedings were issued. The submissions of Counsel for the Defendant were set out in the Case Stated by the learned High Court Judge to us. The learned Circuit Court Judge held that the Plaintiff was domiciled in England at the relevant time and that she was the legal spouse of the Defendant.

17

Having so found he, (the Circuit Court Judge), went on to deal with the merits of the case and gave Judgment.

18

The Defendant appealed to the High Court from that Judgment.

19

At the hearing of the preliminary issue before the learned High Court it was submitted on behalf of the Defendant that the Court should follow the Judgment of Barr J. in C.M. -v- T.M. 1991 Irish Law Reports Monthly at page 268. In that Judgment the High Court Judge held the common law rule that the domicile of a married woman was dependent on that of her husband was "a relic of matrimonial female bondage which was swept away by principles of equality before the law and equal rights in marriage as between men and women which are enshrined in the Constitution", and relied in particular on Article 40(1) and Article 40(3) and Article 41 of the Constitution. It was submitted by the Defendant, both in the High Court and in this Court, that if the dependant domicile rule did not survive the enactment of the Constitution, that the Plaintiff would at all material times have had a domcile independent of that of her first husband, J.E., that even had she acquired a domicile of choicein England at an earlier stage, she had reverted to her domicile of origin when she returned to Ireland in 1971. Accordingly she was domiciled in Ireland at the time of the commencement of the divorce proceedings in 1972.

20

It was further submitted in the High Court and in this Court that prior to the coming into force of the Domicile and and Recognition of Foreign Divorces Act 1986,the Rule for the recognition of foreign divorces was the common law rule that only divorces granted by the Courts of the jurisdiction of the common domicile of the spouses fell to be recognised as laid down in Irish law. The recognition of foreign divorces was discussed and examined in Working Paper No. 10 of 1981 and Working Paper No. 11 of 1984 of the Law Reform Commission and Report No. 10 of 1985, following on which the Act of 1986 was passed. Counsel for the Defendant relied on Mayo Perrott v- Mayo Perrott, 1958 Irish Reports at 336, Bank of Ireland -v- Caffin 1971 Irish Reports 123, and Gaffney -v- Gaffney 1975 Irish Reports at 133. It was also submitted that since the Plaintiff was not domiciled in England at the relevant date her divorce from J.E. was not valid in Irish law and consequently her marriage to the Defendant was not a valid marriage as she had nocapacity to marry him. Therefore the Plaintiff's marriage to the Defendant, it was submitted, was void ab initio.

21

Counsel on behalf of the Plaintiff submitted that the Plaintiff had acquired a domicile of choice in England by the time of her marriage to J.E., and probably earlier, and that by 1972, although she had returned to Ireland, she still retained her family home in England and her British citizenship. Her English divorce was therefore valid in Irish law even if the Court accepted the Judgment of Barr J. in C.M.-v-T.M. In the alternative it was submitted on behalf of the Plaintiff that the Court was not bound by the Judgment of Barr J. Giving the stress on the family as a fundamental unit group (Article 41), the rule of dependant domicile of a married woman, while it might seem undesirable, was not in fact unconstitutional and should be upheld. This, it was submitted, would result in the Plaintiff's retaining domicile of her English husband in 1972. In the further alternative it was submitted that the (common domicile rule) for...

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