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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,
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
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.
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
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