The Gazette 1982

GAZETTE

APRIL 1982

decree of divorce in cases where it is claimed by a Ven- dor that a property is not a Family Home within the meaning of the Family Home Protection Act 1976. Precedent No. 5 of Supplement to Gazette of April 1981 "Guide for Students of Law Society Professional Course" does not appear to be sufficient or appropriate therefore in these cases. The Constitution has indeed served us well as have also the Courts in interpretation and application of same. There is at this stage a whole body of jurisprudence built up around the Constitution which is of inestimable value. The Constitution has however been under somewhat heavy criticism in recent years by writers and lecturers in the law and this attitude, verging almost on denigration of the supreme law of the State, is unfortunately perhaps not a healthy diet for young students of the law, seeing that it has proved to be a solid basis for the stability of our institutions and to be of good balance. It has constantly been rejuvenated and enriched by way of interpretation by the Courts. Its foundation is the secure objective principles of the Natural Law. It could be added finally that in Ireland there should be no necessity for apology or embarrassment for its Christian base. Yours faithfully, Brendan Fitzgerald, B.A. LL.B., Solicitor, 59 Offington Park, Sutton, Dublin 13. Editorial Note: The case for an alteration in the Constitutional restriction on the recognition of foreign divorce is based partly on the difficulty of establishing the domicile of the parties at the time of the foreign divorce and partly on the fact that in many cases which concern Irish prac- titioners the complexities of the doctrine of domicile have been increased rather than eased by the abolition in the United Kingdom of the wife's dependent domicile in the United Kingdom under the provisions of the U.K. Domicile & Matrimonial Proceedings Act 1973. See Shatter Family Law in the Republic of Ireland 2nd Edi- tion Pages 152 - 157. Note from Authors of the Handbook for Students The authors of Handbook for Students agree that it would be inadvisable to accept a statutory declaration exhibiting a foreign decree of divorce as sufficient without making detailed enquiries as to the likelihood of the foreign decree of divorce being recognised in this jurisdiction. They doubt whether Court Orders declar- ing such divorces to be valid in the Republic of Ireland would be readily obtainable. There is no obvious pro- cedure available for the obtaining of such Orders. A Vendor and Purchaser Summons could of course be taken out but the complexities involved make the sub- ject an unsuitable one for determination on a Vendor and Purchaser Act Summons. 45

Correspondence

February, 1982

The Editor, Gazette of the Incorporated Law Society, Blackhall Place, Dublin 7.

Dear Sir, Your Editorial "Comment" - "Tinkering with the Constitution" in the issue of the Gazette of October 1981 is indeed deserving of serious thought and I am sure many other lawyers and citizens would agree with these views. However, as to the comment re. recognition of foreign decrees of divorce and the suggested alteration of Article 41.3.2 of the Constitution I think that this "•oposition would not seem necessary nor advisable iving regard to recent decisions of the Courts in this area. In the Judgment of Kenny J. in the High Court in the case of Bank of Ireland v. Caff in [1971] I.R. 123, he recognized a foreign dccree of divorce where both par- ties had been domiciled in a foreign jurisdiction and held in that particular case that the testator's second wife whom he had married in Dublin after the decree nisi was made absolute was his legal spouse for the pur- poses of the Succession Act 1965. Having regard to the other provisions of Article 41 in relation to the guarantee of the State for the support and protection of the institutions of Marriage and the Family I think that this interpretation by the High Court sufficiently lays down a guiding principle which would appear to be a workable one and to be effectively in ac- cordance with the principles of private international law in relation to foreign decrees. The same principle was also applied later by Kenny J. in Counihan v. Counihan (High Court unreported 27 July 1973) and by the Supreme Court in Gaffney v. Gaffney [1975] I.R. 133. Accordingly the fact of domicile of both recognition rinciple could be applicable within the general provi- sions of Article 41 in relation to the institutions of Marriage and the Family. (See "Cases and Materials on the Irish Constitution" by James O'Reilly and Mary Redmond at Chapter 18). In an Article entitled "Foreign divorces obtained on the basis of residence and the doctrine of estoppel" (9 I.R. Jur. 1974 page 59) Mr. William Duncan speculates on the possibility as to whether the Courts would ex- pand the grounds of recognition to residence-based divorces and on the wife's domicile of dependency and suggests recognition of divorces granted by a Court of either party's domicile. But surely would not such a solution of necessity operate with possible serious and unjust results both for the party not domiciled in the particular jurisdiction of the Court Order and of course also the children in particular of such marriage? I think that the case of Gaffney v. Gaffney already referred to is a clear illustration of this. This matter is indeed of great importance in relation to the devolution of property in this country and also to the disposition of property having regard to the Family Home Protection Act 1976. As to the latter it would appear to me accordingly that a Court Order of this jurisdiction should be called for rather than a Statutory Declaration exhibiting a foreign