The Gazette 1975

nullity of the marriage in England on the grounds that her husband's English divorce decree would not be recognised in Ireland and therefore her marriage was bigamous. This argument was based on Article 41 of the Irish Constitution referred to earlier. Mr. Justice Karminski held that it was highly un- likely that the Constitution of Ireland intended, with- out clear words, to reverse a practically universal rule of private international law. He therefore found that the Law of Ireland recognised the validity of the decree of dissolution pronounced by the English High Court, dissolving the marriage between the husband and his first wife, and also recognised the validity of the marriage celebrated in Dublin between him and the second wife. He approved the Judgment of Mr. Justice Kingsmill Moore in an. Irish Case of Mayo Perrott v. Mayo Perrott and came to the same construction and for the same reasons as the Irish Judge. Up to the present time this Country recognises the validity of a divorce granted in the Country of domicile of the parties. The State grants authority to marry persons who have English or certain foreign divorce decrees provided the parties were domiciled in the Country where the divorce was obtained. A contrary view would lead to strange results, e.g. if persons domiciled in England were divorced and remarried the remarriage would be valid in England and the children legitimate but if the remarried persons came to Ireland they would be prosecuted for bigamy and their child- ren would be illegitimate. But we must now consider the well known Irish case of Mayo Perrott v. Mayo Perrott (1958 IR 336). The Plaintiff who had been the successful Petitioner in the High Court in London for dissolution of her marriage, sued in the High Court here for the unpaid balance of costs awarded to her in the suit. It was held by Mr. Justice Murnaghan at first instance and affirmed by the Supreme Court on Appeal that the order for costs could not be severed from the substant- ive order for divorce and could not be enforced here, being repugnant to our policy as declared in the Constitution. On appeal to the Supreme Court two of the Judges, the then Chief Justice Maguire and Mr. Justice Kingsmill Moore considered the question whether or not the English decree of divorce would be recognised by the Irish Courts as valid to dissolve the marriage, and their views differed completely. The Chief Justice stated that Article 41 subsection 3 of the Constitution said as plainly as possible that a marriage dissolved under the law of another State remained in the eyes of the law here a subsisting valid marriage. On the other hand Mr. Justice Kingsmill Moore in his judgment expressed the opposite view. "I cannot find, he said, anything in Article 31 (3) to suggest that the Courts (in. the absence of further legislation) are entitled to do otherwise than regard as valid and effectual a divorce a vinculo granted at the time of the shit were domiciled in that Country," but later in his judgment added, "the general policy of Article f 41 (3) seems to me clear. The Constitution does not honour dissolution of marriage. No laws can be enacted to provide for a grant of dissolution of marriage in this Country. No persons whose divorced status is not recognised by the law of this Country for the 24

The procedure though Parliamentary was substantially judicial, the allegations were investigated and if sub- stantiated, the relief sought was granted as a matter of right and justice. In short, Parliament was the tri- bunal for such cases and was resorted to as a matter of recognised procedure by those who sought relief on good grounds and could afford to pay for it. By the Matrimonial Causes Act 1857 the procedure for Divorce was in England given to a regular Divorce Court which could pronounce a final decdee. The Act did not apply to Ireland, and the old procedure of petitioning for a private bill to the Imperial Parliament remained the only method available. The position remained un- altered until the passing of the Constitution of Ireland in 1922 followed by a further Constitution of Ireland in December 1937. Under Article 41 of the latter it was provided that:- "The State guarantees to protect the Family in its Constitution and authority as the necessary basis of social order and as indispensable to the welfare of the Nations and the State. The State pledges itself to guard with special care the institution of Marriage, on which the family is founded, and to protect it against attack. No law shall be enacted providing for the grant of a dissolution of marriage. No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parlia- ment established by this Constitution, shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved." What then is the position here? In a nut-shell there is no divorce which entitles the parties to remarry — only Divorce a mensa et thoro — a legal Separation. What legal steps are open to parties in this Country wishing to live apart:- (1) Proceedings in the District Court by wife for Maintenance (up to £15) + £5 for each child. (2) Deed of Separation. (3) Judicial Separation by the Court i.e. a Decree a naeiwa et thoro. (Must prove either Cruelty, Desertion or Adultery). What is the position regarding English and foreign Divorce Decrees? An entirely different question is the recognition which will be afforded by our Courts to the decrees of dissolu- tion of marriage granted by English and foreign Courts to persons domiciled within the jurisdiction of those Courts. Different Communities have different views and laws respecting matrimonial obligations, and a different estimate of the causes which justify divorce. It is real- ised here as elsewhere that it would be ridiculous to have a situation where a man and woman could be held to be man and wife in one Country and strangers in another. This whole question was dealt with in an English Court Decision of Breen v. Breen (1961) 3 All E.R. 225. Mr. Breen had been divorced (in England) and married his second wife in the Registry Office Dublin in 1953. In 1961 Mrs. Breen (the second) sued for