The Gazette 1974

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 55

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 C .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- Ce ptives. It is, I 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 P e 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 a 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. He 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 a 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 Us ^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 11 was falsely stated that the plaintiff wife and husband Jy 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 a 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