The Gazette 1974

manufactured in this State, the effect of S. 17 is—that

>t is not legally possible to obtain a contraceptive. It is

doubtful if the Legislature could have taken more

effective steps by means of the criminal law to put an

end to their use.

Per Fizgerald

.J. (

dissenting

). I think it well to

make it quite clear that, while it is pleaded and proved

that the plaintiff and her husband are of the Roman

Catholic religion, the issue to be determined is not based

°n any issue related to any particular religion.

It is perhaps worthy of note that the product known

a s

"The Pill" can be imported and sold in the open

market quite lawfully. It is not included in the Schedule

^hich prohibits the importation or sale of contra-

ptives.

It is,

think, well to realise that

the plaintiff's claim

here is, as a citizen,

and

that if any portion of Section

I' is declared unconstitutional, the benefit to be derived

Itom such a decision is equally to be enjoyed by every

be they married or not.

The fact that the

Plaintiff professes a particular religion, or that she and

r husband have agreed upon a particular course, is

Ruite irrelevant. To hold otherwise would be to dis-

tln

guish between citizens of different religions. Having

mgard

to the constitutional provision

prohibiting

divorce, the physical or mental illness of one spouse

necessarily has

its repercussions on both, perhaps for

meir joint lives. These appear to me to be natural

hazards which must be faced by married couples with

SLl

ch fortitude as they can summon.

English divorce obtained fraudulently by fear is

invalid, consequently the first wife is entitled to

administer her husbands' estate, to the exclusion

of the second wife.

The husband married his first wife, Alice, at the age

21, in a Catholic Church in Dublin in December

Th ey were both Irish citizens, lived in various

ddresses around Dublin, and eventually had seven

children. The husband was a domineering man who was

V e r

y successful in business. He treated his wife with

cruelty, and used physical violence against her on

humerous occasions, so that she was very frightened of

mm.

was also having numerous adulterous associa-

mns with other women, but the wife remained with

mm for the sake of the children. Finally the husband

d acquired two houses, one in Blackrock, where the

jm and family resided, and one in Leopardstown,

^here he lived himself. T h e husband also bought his

mother a house in Blackburn in Lancashire where he

^d to stay occasionally.

I he husband had intimated on numerous occasions

he desired to get a divorce f r om his «wife, but

.fte did not want it. Despite this, he instructed solicitors

m Manchester in 1957 to prepare a full petition for

•

1Vor

ce. T h e plaintiff wife was named as petitioner, and

was falsely stated that the plaintiff wife and husband

ere

domiciled in England. T he petition then stated

n a

t a divorce was sought on the ground that the

Usband had deserted the wife for three years. The

°curnents were sent to the husband by post, and the

ysband threatened his wife with aggravated physical

lolence if she did not sign them, and subsequently

mtend at the hearing. On July 21, 1958, the husband

nd wife attended at Manchester High Court, and,

mr a short hearing, the wife was granted a

decree

of divorce, provided that the husband paid his

l f e

£ 40 per month, the rent of the house, and the

children's school fees. The

decree nisi

was eventually

made absolute on 7 J a nu a ry 1959. The husband then

gave his address as Blackburn, and, married his second

wife, Lydia, in a Registry Office in England, although

he subsesuently came to live in Dublin.

Th e husband subsequently prepared a fraudulent

agreement whereby he forced his wife, Alice, for £1,000

to waive her right to £ 40 per month, to any alimony,

and to any right to reside in the house in Blackrock,

as well as compelling her to support and maintain any

children under 17. This agreement was signed in April

1964, and the husband in fact paid his wife only £600.

Th e husband resided with his second wife in Ireland,

until he died of a swimming accident in Spain in April

1972. There were no children of the second marriage,

and the husband died intestate. T h e first wife now

claims a declaration that she is the widow of the hus-

band for the purposes of succession, who is alone entitled

to obtain a Grant of Administration. The second wife

has lodged a Caveat to contest this. It is clear that, as

the husband and the first wife were domiciled in Ire-

land, and as neither of them had ever resided in

England, the High Court in England had no jurisdic-

tion to grant a divorce. It is established that a mar-

riage may be declared null, if it is entered into because

of duress, and a similar principle must apply to an

application for divorce. It is

not

the law that, before the

Irish Courts can refuse to recognise a divorce granted by

the Courts of another country and obtained by f r aud

or duress, an application must be made to the Courts

of that country to discharge or vary the decree. The

question whether a spouse domiciled in one State, who

obtains an invalid divorce in another State, is estopped

in the State of the domicile from establishing that the

divorce is invalid, and that she should be regarded as

the spouse for the purposes of succession, must next be

considered. If the husband had been prosecuted in Ire-

land for bigamy, and the invalidity of the English

divorce had been established, he would have been con-

victed. In order to avoid absurd consequences, it follows

that in principle the doctrine of estoppel does not nor-

mally apply to the question of the existence of a valid

marriage. Nevertheless a spouse who has obtained an

invalid decree of divorce in another State, is not

estopped in the State of the domicile from establishing

the invalidity of the divorce and of her status as a

spouse, for there can be no estoppel of any kind as to

whether a marriage has been validly dissolved or not.

Accordingly the plaintiff Alice is entitled to a declara-

tion that the divorce granted to her husband did not

validly dissolve the marriage to the husband, and was

accordingly of no effect. She will therefore be declared

entitled to a grant of administration to her husbands'

estate. T h e caveat entered by the second wife will be

discharged.

[Re Henry Gaffney deceased—Alice Gaffney v. Lydia

Gaffney—Kenny J.—unreported—21 J une 1973.]

If a husband leaves wife if told to do so by her, there

is no constructive desertion, and an application for

maintenance by her must consequently be refused.

The husband and wife were married in December

1954 in Dublin; they were both Irish citizens, and the

husband has at all times been domiciled in Ireland.

Th ey lived at first in Blackrock until 1956, when, as a

result of money difficulties, the husband was compelled

to sell the house, and take up a position in Mo n a g h a n;

he was unable to provide a house there, and the wife