The Gazette 1982

GAZETTE

JULY/AUGUS T 1982

Recognition of Foreign Divorces — a further gloss by John F. Buckley and Michael V. O'Mahony, Solicitors T HE recent decision of the Supreme Court in the case of M.T.T. -v- N.T. (1 April 1982, this divorce was challenged by the wife on the grounds that the husband's domicile was Irish he having acquired an Irish domicile of choice.

unreported) appears at first sight to signify a significant change in the attitude of the Court to the basis upon which it will recognise foreign divorces but the change is one which, in the circumstances of the case, the Court could hardly have avoided. In the earlier cases of Bank of Ireland and Caff in [ 1971] I.R. 123, and Gaffney -v- Gaffney [1975] I.R. 133, Kenny, J., (confirmed in the latter case by the Supreme Court), took the view that the Court would recognise a decree of divorce granted in the country where the parties were domiciled. In the Gaffney case, Kenny, J, expressly reserved consideration of the Court's position if a decree was granted in a foreign country on the basis of the residence of the parties. The Caffin and Gaffney decisions reflected the old common law rule in Le Mesurier -v- Le Mesurier [1895] A.C. 517. At the time of that case the doctrine that a wife's domicile depended on that of her husband prevailed throughout the part of the common law world then forming part of the British Empire and to a lesser extent in the United States. The crucial test was therefore, in all but a tiny majority of cases, the husband's domicile which established the domicile of the parties. The facts in the M. T. T. case were that the wife, M.T.T., was a natural-born Irish citizen who married N.T., the husband, a natural-born British citizen, in London in 1966. They lived in London, where the four children of the marriage were born, until 1974 when they all moved to Co. Cork where the husband got a permanent and pensionable local authority post. Their only place of residence from 1974 until 1976, when the marriage broke down, was in Co. Cork. The husband moved out of the family home towards the end of 1976 but continued to reside in Cork. In February 1977 the husband filed (and served on the wife) a petition in London for the dissolution of the marriage on the grounds that it had broken down irretrievably. The petition was not defended and a decree nisi absolute issued in August 1978. In the meantime, the wife had obtained an order for maintenance under the Family Law (Maintenance of Spouses and Children) Act 1976 in the Cork District Court in 1977 and a variation of that order in 1978. Following the divorce decree in August 1978 the husband applied to the Cork District Court for a variation of the existing maintenance order contending that the divorce absolved him from liability to continue to make maintenance payments to the wife. The validity of

The judgments in the Supreme Court (Henchy and Griffin J.J.) do not give an indication of the basis upon which the English Court took jurisdiction in the matter. Under the provisions of Section 5 (2) of the U.K. Domicile and Matrimonial Proceedings Act 1973 the High Court or a divorce county court has jurisdiction "if (and only if) either of the parties to the marriage, (a) is domiciled in England and Wales on the date when the proceedings are begun; or, (b) was habitually resident in England and Wales throughout the period of one year ending with that date". The husband was clearly not habitually resident in England and Wales for the prescribed one year period, ending in February 1977 when the divorce proceedings were commenced, so the only lawful basis on which the English court could have taken jurisdiction was the domicile of the husband, which the Supreme Court subsequently held to have been English. Per Henchy J.: "Before the husband's domicile could be held to be Irish it would have to be established that he had abandoned his British domicile of origin and had opted instead for an Irish domicile of choice. This is a mixed question of law and fact, an affirmative answer to which depends on whether it appears from the husband's conduct and the general course of events that he had cast off his British domicile of origin and had chosen to take on in its place an Irish domicile. The rebuttable presumption is that a person retains his domicile of origin . . . . . . A man's sojourn abroad with his wife and children for two years, even in a position of permanent employment, is not, without more, capable of displacing the presumption that the domicile of origin has been retained. The period lived abroad may be no more than the extended manifestation of the temporary compulsion of circumstances. Such bare facts as we have in this case as to the husband's foreign residence do not show the volitional and factual transition which is a 4 sine qua non y for shedding a domicile of origin and acquiring a domicile of choice". The law in Ireland is still that a married woman has a domicile of dependency, the same as that of her 211