The Gazette 1991

GAZETTE

JANUARY/FEBRUARY 1991

grounds that it was irreconcilable with the decree absolute. The justices allowed the appeal on the ground of irreconcilability. The wife appealed. Enforcement of Irish maintenance order in England. Mrs. Jus t i ce Booth for the Divisional Court said that there were two routes that might be taken to enforce in the English courts a maintenance order made in Ireland. The first was that chosen on behalf of the wife under the 1972 Act and the 1974 Order. The second was found in the Civil Jurisdiction and Judgments Act, 1982 which implemented the 1968 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commericai Matters (The Brussels Convention). Both provided not only for the recognition and enforcement of judgments and orders, but they also defined those situations where such recognition and enforcement should be refused. Under article 27 of the Convention, a judgment should not be recognised if the judgment was irreconcilable with one given in a dispute between the same parties in the State in which the recognition was sought. The same ground prohibiting the re- gistration of an order was to be found in article 6(5) of the 1974 Order. That was the ground on which the husband relied and on which the justices refused to register the order. European Court of Jus t i ce The European Court of Justice in

HLM Hoffmann -v-A. Krieg [1988] ECR 645 considered the applica- tion of article 27 of the Convention, where a wife obtained a main- tenance order in Germany; the hus- band was granted a decree of divorce in the Netherlands and the wife applied to the Netherlands court to enforce the German main- tenance order. The Netherlands High Court referred the matter to the European Court of Justice. The European Court of Justice said that in order to ascertain whether a foreign judgment order- ing a person to make maintenance payments to his spouse by virtue of his conjugal obligations to support her was irreconcilable within article 27(3) with a national judgment pronouncing the divorce of the spouses, it should be examined whether the judgments entailed legal consequences that were mutually exclusive. The European Court of Justice decided that the German main- tenance order could not be en- forced in the Netherlands. Mrs. Justice Booth considered that the facts in the above case did not differ in any material respect from the facts of the present case. Mrs. Justice Booth said it would be wholly undesirable for the Division- al Court to distinguish the applica- tion of article 27 (3) of the Convention, which was part of English law, and the application of article 6 (5) of the 1974 Order. The reasoning of the European Court of Justice was as apposite to article 6 (5) as to article 27 (3). The Irish maintenance order was founded on the husband's obliga-

registration of a maintenance order made in the High Court of Ireland. The Facts The parties were married in 1975 and established their home in Ireland. In 1985 they separated. The wife and two children remain- ed in Ireland and the husband returned to England. In 1986 the wife issued a writ for maintenance in the Irish High Court. The hus- band filed for divorce in England and applied in Ireland to stay the maintenance proceedings. In January 1987 he obtained a decree nisi. In February 1987, the Irish court refused to stay the maintenance proceedings and directed the husband to make periodical pay- ments for his wife and children. The husband was granted a decree absolute in March 1987. In February 1988, Barr J in the High Court of Ireland declared that the English decree was entitled to recognition in Ireland as valid to dissolve the marriage. In November 1989, Barr J decided that despite the recognition of the English decree absolute, the interim periodical payments order in the wife's favour remained in full force. The interim periodical payments order was registered in the Hove magistrates' court under the Maintenance Order (Reciprocal Enforcement) Act, 1972 as modi- fied by the Reciprocal Enforcement of Maintenance Orders (Republic of Ireland) Order 1974 (S.I. No. 2140). The husband appealed against the registration of the order relating to the wife's maintenance on the

Doyle Court Reporters Principal: Áine O'Farrell Court and Conference Verbatim Reporting Specialists in Overnight Transcription 2, Arran Quay, Dublin 7. Tel: 722833 or 862097 (After Hours) £xcettence in (Reporting since 1954

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