Supreme Court dismisses appeal on foreign divorce recognition where husband failed to prove Dutch domicile.

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

Hardiman J.

Geoghegan J.

29 & 130/02

BETWEEN

D.T.

APPLICANT / RESPONDENT

AND

F.L.

RESPONDENT / APPELLANT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

JUDGMENT delivered the 26th day of November 2003, by Keane C.J.

Until the coming into force of the Constitution in 1937, the principles of private international law applied by the courts in Ireland

included the rule known as the “dependant domicile” of a wife. This meant, in effect, that in cases where the rights of parties fell to

be determined in accordance with the principles of private international law and, in particular, by a determination as to where one or

both of the parties was domiciled at a particular time, the domicile of a wife was regarded, for all such purposes, as being the same

as the domicile of her husband. However, in C.M. –v- T.M. [1991] ILRM 268, the High Court (Barr J.) held that the rule in question was

inconsistent with the provisions of the Constitution and had not survived its enactment. That statement of the law was upheld by

this court in W. –v- W. [1993] 2 IR 476.

So far as the recognition of decrees of divorce granted by courts of a foreign jurisdiction was concerned, the Irish courts applied the

principle of private international law that such a divorce would be recognised if it was granted by the court of a jurisdiction in which

both parties where domiciled. The result was that, until the clarification of the law in C.M. –v- T.M., a divorce granted by a court in a

jurisdiction where the husband was domiciled would be afforded recognition because that was also treated as the domicile of his wife.

Section 5(1) of The Domicile and Recognition of Foreign Divorces Act, 1986, (which did not apply to the divorce at issue in C.M –v-

T.M) provided that

“For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby

substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled.”

In C.McG. –v- D.W. & Anor [2000] 1 IR 96, it was held by the High Court (McGuinness J.) that, where the decree of a foreign court

was granted prior to the coming into force of s. 5(1) of the 1986 Act, the issue as to the recognition of a foreign divorce was still

governed by the common law rules of private international law. The learned judge in that case held that it was open to the Irish

courts in the case of foreign divorces granted before the 2nd October, 1986 to modify, where necessary, the recognition rules based

on the common domicile of spouses. She was satisfied that, having regard to the relevant provisions of the Family Law (Divorce) Act,

1996 and the Family Law Act, 1995, the courts should adopt a policy of extending recognition to decrees of foreign courts where

either of the spouses was ordinarily resident in the foreign jurisdiction for a period of one year prior to the institution of the relevant

proceedings.

The applicant and the respondent in the present proceedings (hereafter respectively “the wife” and “the husband”) are Irish citizens

who were married in Ireland on the 30th August, 1980. In the year 1988, they emigrated to the Netherlands with their three children

and lived there until 1992. At that point, difficulties had developed in the marriage and, in circumstances which were to some extent

the subject of dispute, the wife returned to Ireland in that year with the children. The following year, she instituted divorce

proceedings in the Netherlands in which she also sought an order for payment of interim maintenance. An order in her favour for the

making of interim maintenance payments was made by the Dutch court in February 1994, but thereafter she did not pursue the

application for a divorce. On the 2nd March, 1994, however, the husband instituted divorce proceedings in the Netherlands and a

decree of divorce was granted by the Dutch court on 12th September, 1994.

On the 6th July, 2000, proceedings were instituted by the wife in the High Court claiming a decree of judicial separation and certain

ancillary reliefs. An order was made by consent that

“a preliminary issue be tried herein the issue being ‘ whether the [husband] is or is not entitled to a declaration that the

validity of a divorce obtained on the 13th day of July 1994 under the civil law of the Netherlands is or is not entitled to

recognition in this State pursuant to the Family Law Act, 1995, s. 29(1)(d) and / or (e)’.”

(The reference to a divorce having been obtained on the 13th July, 1994 is an error: as already noted, the divorce was not granted

until the 12th September, 1994.)

The order also provided for the joining of the Attorney General as a Notice Party in the proceedings.

The preliminary issue was heard by Morris P. in a trial which lasted five days and in which oral evidence was given on behalf of the

husband and the wife. It is clear from the transcript and the reserved judgment delivered by the learned President on the 23rd

November, 2001 that the case advanced on behalf of the husband had two limbs. The first was that, at the time the divorce

proceedings were instituted in the Dutch courts, the husband had acquired a domicile of choice in the Netherlands and that,

accordingly, the divorce granted by the Dutch court was entitled to recognition in this jurisdiction. The second limb was that, if he

had not acquired a domicile of choice, the court should apply the modified rule of private international law adopted by the High Court

in McG. –v- W. in which case, since it was accepted that he had been ordinarily resident in the Netherlands for a period in excess of

one year at the time the proceedings were instituted, the decree granted by the Dutch court was entitled to recognition on that

basis.

The learned President, having dealt with the facts and what he considered to be the applicable principles in his judgment, rejected

both limbs of the husband’s case and, accordingly, determined that the divorce granted by the Dutch court was not entitled to

recognition in this jurisdiction. A notice of appeal was served on behalf of the husband, but in the written submissions lodged on his

behalf, it was made clear that the appeal against that part of the judgment which rejected the alternative case on behalf of the

husband that the modified rule adopted in McG. –v- W. should be applied was not now being pursued. In those circumstances, the

Notice Party took no further part in the hearing of the appeal. This court, accordingly, at this stage is solely concerned with the issue

as to whether the husband was at the relevant time domiciled in the Netherlands with the result that the divorce granted by the

Dutch court should be recognised by the High Court.

It is now necessary to consider the facts in greater detail. The husband is a qualified civil engineer and accountant. In 1987, he was

employed in Ireland by a leading firm of chartered accountants. The wife had been employed as a public relations officer in a large

organisation, but had given up that position with the arrival of the children. In 1987, the husband was offered a position with the

Dutch subsidiary of a major Irish company. This was, of course, at a time when the economic outlook in Ireland was bleak. There were

also tax advantages in moving to the Netherlands. The parties were agreed in the circumstances that the move to the Netherlands

was in the interest of themselves and their children. The applicant described the contract with his new employers as “open-ended”,

although it was envisaged that it would last for at least three to five years. The decision having been made to move to the

Netherlands, the family home in Ireland was sold and the husband resigned from the clubs of which he was a member in Ireland.

The evidence of both husband and wife was that they adjusted well to living in the Netherlands. Both of them learned Dutch and their

children went to school in the Netherlands. However, difficulties developed in the marriage and, as already noted, the wife returned to

Ireland in 1992 with the children. The husband gave evidence that he was opposed to her decision to move back to Ireland with the

children, but that when this happened in August 1992, he reluctantly accepted that his marriage was at an end. He also gave

evidence, however, that prior to her departure, his wife had suggested that he should talk to his employers about the possibility of his

obtaining a job with the Irish company in Ireland. He said in evidence that the two jobs which were suggested as being available were

of no interest to him.

This version of events was disputed in evidence by the wife who said that her understanding at the time the Irish jobs were on offer

was that her husband was also anxious to return to Ireland and that she had gone to Ireland with the children in order to put in place

arrangements for the return of the entire family. She said that during that period she had found schools for the children. She agreed

that, when her husband was given the full terms of the positions available to him in Ireland, he was very unhappy with them.

It is not, however, in dispute that from August 1992 the wife and children were living in Dublin and the husband was also visiting them

fairly regularly and spent two weeks at Christmas with them. Nor is it in dispute that at that time – i.e. the Christmas / New Year

period of 1992 / 1993 – they both accepted that the marriage had broken down and that there should be a separation agreement.

While, for the purposes of this judgment, it is unnecessary to go into any detail, the arrangements for a separation agreement did not

go smoothly and this led to the decision of the wife to institute the proceedings in the Netherlands with a view to getting an order for

the payment of maintenance by the Dutch court.

The husband gave evidence that in January 1994 he was “headhunted” by a large civil engineering firm in this jurisdiction. He said

that he initially turned down the offer, but that they were unwilling to accept his refusal and that he had further discussions with

their representative at an international rugby match in Dublin some time later. At the end of April, he agreed to take the job and he

returned permanently to Ireland in May 1994.

It should finally be noted that on the 16th December, 1993, the husband wrote as follows to his lawyers in the Netherlands

“My wife has stated her intention to apply to the Dutch courts for a divorce. She has chosen for the application of Dutch law

under Article 1 part 4 of the 1981 Divorce Law. The Dutch court has jurisdiction to hear this case because of Article 814 and

the fact that I have lived for more than twelve months in the Netherlands. I agree to the application of Dutch Law.

In connection with this I would like to notify you of my intention to change my domicile to the Netherlands. I would be grateful

if you would acknowledge receipt of this letter.”

In the course of his judgment, the learned President, having referred to what he considered the applicable principles of law,

summarises his conclusions as follows

“In this case I would be prepared to accept that the respondent became fond of living in Holland and that he was content to

remain there for the purposes of his work. I would have no difficulty in accepting that if “X” Ltd. had renewed and continued

to renew his contract in Holland, all other things being equal, he would have been prepared to remain there. However, I am

equally sure that if for any reason his employment was discontinued with “X” and if he was unable to obtain a suitable position

in Holland he would have been ready and willing to travel to another country to pursue a job opportunity. I can never foresee

the possibility that the respondent would remain in Holland come what may and even if he were without employment. In my

view he has not satisfied the positive element of the test. No more do I consider that he formulated any intention of

abandoning Ireland as his domicile of origin. The only evidence which is consistent with this intention was the sale of the family

home and the cancelling of his membership of clubs. If one weighs these factors against the evidence that he returned to

Ireland for his summer holidays, that he visited his family in Ireland on a number of occasions, that he arranged for his wife to

return to Ireland when difficulties arose in the marriage, in my view it is clear beyond doubt that he never abandoned his

domicile of origin.

Accordingly I hold that on the 13th July, 1994 being the date upon which the divorce was obtained in the Netherlands, the

[husband] was domiciled in Ireland.”

On behalf of the husband, Mr. Durcan S.C. submitted that, in reaching these conclusions, the trial judge made errors of law and fact

such as to render the trial so unsatisfactory that his decision should be set aside by this court and that the court should grant a

declaration that the divorce is entitled to recognition under Irish law. Alternatively, he submitted that, if this court was of the view

that there were not adequate findings of fact to allow this court to come to a conclusion with regard to the issue of recognition, the

case should be remitted to the High Court for a new trial.

Mr. Durcan submitted that the trial judge was in error in making the following findings:

(1) That the divorce in the Netherlands was granted on 13th July, 1994, whereas in fact it was granted on 12th September,

1994

(2) That the husband was employed by the Irish company as a project manager, whereas in fact he was employed by a Dutch

company which was a subsidiary of the Irish company

(3) That the husband’s employment in the Netherlands was for a period of five years, subject to review at that time and the

possibility of renewal, whereas in fact it was an “open-ended contract”

(4) That there were no facilities for crèches in the area where the husband and the wife were living and that there was no

employment available to the wife, whereas the evidence was that the younger children went to a crèche and there was no

evidence as to the employment opportunities available to the wife.

(6) That the idea of returning to work in Ireland in the year 1992 was one of many options considered by the husband and that

he did so only in the hope that it might save the marriage, whereas there was no evidence that the husband considered any

option other than the possibility of taking up a job with the Irish company.

(7) That the evidence of the husband was that “it was always his intention to remain on in Holland”, whereas this was not the

husband’s evidence: his evidence was to the effect that it was not until the latter part of 1992 that he arrived at a positive

decision to stay in the Netherlands

(8) That it was envisaged, when he took up employment in the Netherlands first, that if he wished to return to Ireland an effort

would be made to accommodate him, whereas the evidence was that the contract was open-ended.

Mr. Durcan S.C. further submitted that the trial judge had failed to make findings of fact in regard to a number of important matters.

He said that, effectively, the trial judge’s summary of the factual evidence ended in September 1992 and did not deal with the

subsequent events ending in the husband’s return to work in Ireland in May 1994. Nor had he resolved the conflict of evidence

between the parties as to the circumstances in which the wife had returned to Ireland with the children. Mr. Durcan also submitted

that the trial judge had not applied the correct principles of law in two major respects. In the first place, he had treated the date of

the granting of the divorce (which he erroneously said was the 13th July, 1994) as the relevant date for determining whether the

husband was domiciled in the Netherlands. In the second place, he had treated the appropriate test as being whether the husband

would remain in the Netherlands “come what may, and even if he were without employment”, whereas the appropriate test was

whether he had formed a settled intention permanently to reside in Holland, even if that were subject to a caveat that he might leave

Holland if he could not find any suitable employment there.

The domicile of origin of the husband in this case was Irish. The factors to be taken into account in determining whether such a

domicile of origin has been replaced by a domicile of choice were summarised by Budd J. in In Re. Sillar, Hurley –v- Winbush [1956] IR

344, in a passage which has been approved of on a number of occasions in this court:

“From a consideration of the case law it is clear that it is a question of fact to determine from a consideration of all the known

circumstances in each case whether the proper inference is that the person in question has shown unmistakably by his

conduct, viewed against the background of the surrounding circumstances, that he had formed at some time the settled

purpose of residing indefinitely in the alleged domicile of choice. Put in more homely language, that he had determined to make

his permanent home in such place. That involves, needless to say, an intention to abandon his former domicile. Where he has

made a declaration touching on the matter it must be weighed with the rest of the evidence. Such a declaration may be a

determining factor, but will not be permitted to prevail against established facts indicating more properly a contrary

conclusion.”

In applying that test to a person, such as the husband in the present case, who has left his country of origin and taken up

employment in another country for a period of time, amounting in this case to seven years, it is important to bear in mind that a

decision to move one’s residence to another country in circumstances of that nature may not be sufficient to discharge the

significant onus of establishing that a person has abandoned his domicile of origin and acquired another domicile of choice. As Henchy

J. observed in T. –v- T. [1983] IR 29

“The period lived abroad may be no more than the external 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 the sine qua non for shedding a domicile of origin and acquiring a domicile of choice.”

The difficulties attendant on establishing a claim in such circumstances that a person has abandoned his or her domicile of origin and

acquired a domicile of choice are well illustrated by the decision in C.M. –v- T.M.. In that case a married couple with a domicile of

origin in England lived in Ireland from 1979 to 1985 when the marriage broke down. At that stage the husband returned to England and

initiated divorce proceedings there. An issue arose as to whether at the date of the initiation of divorce proceedings he was domiciled

in England.

Barr J. said that he was satisfied that the husband was motivated primarily by financial considerations in deciding to come to Ireland

in 1979 and take up residence there, although he was also satisfied that he and his wife intended to establish their home in Ireland.

As in this case, one of the matters influencing that decision was the nature of the tax regime which would apply to him in Ireland as

opposed to the United Kingdom. The learned judge went on:

“However it does not follow from the fact that the husband decided to accept the tax and other advantages which Ireland

offered, that the setting up of a family residence here for an indefinite period established per se an intention on his part to

make his permanent home in Ireland and to abandon his domicile of origin. It seems to me that there is an important

distinction between setting up home for an indefinite period in a particular place and setting up a permanent home there. The

latter implies that the situation thus created is intended to continue for the foreseeable future and may be altered only in the

event of a change of circumstances which is not then in contemplation or anticipated as being likely to happen at a future

date (but excluding consequences such as the inevitability of old age and natural changes in family circumstances which are

not anticipated in the short or medium term). On the other hand, a home which is established in a particular place for an

indefinite period may depend upon the continuance of circumstances which are themselves indefinite as to likely duration. In

my view a home set up in the latter basis does not have the element of permanency as so defined which is an essential

indicator of a change in domicile.”

In that case, it was held that the burden of proof of displacing the domicile of origin had not been discharged.

I am satisfied that, applying these well settled principles of law, it would not have been possible for the trial judge in the present

case, in the light of the agreed or admitted facts, to hold that the presumption as to the continuance of the domicile of origin had

been rebutted.

I cannot see that any different conclusion would follow if one were to treat the critical period in this case as being that from August

to December 1992, as Mr. Durcan urged, on the basis that the husband’s evidence was that it was during this period that he

accepted that his marriage had broken down and that he would not be living in the future with his wife and children in Ireland.

In this context, there are two highly relevant passages in his evidence. This first is in the Transcript, Volume 2, at p. 15:

“20Q. Ms. Clissmann. What was your family’s outlook in relation to moving to live in Holland?

A. I think we looked on it as an adventure. I don’t think I had ever thought we would come back to live in Ireland again. I think

my ex-wife quite liked the idea of Holland. There was one other alternative we looked at in Bermuda and that really never

amounted to much, but Holland was a fairly civilised place and you had a lot of culture, a lot of traditions, and it was an

adventure that we were going to go and do.

Mr. Justice Morris. Why would you not come back to Ireland again? Have you not got relations, friends, ties?

A. Sorry, I meant to live permanently. My family are in Cork. My parents, brothers and sisters are in Cork. But only in the

context of holidays, not in terms of living …

A. I think maybe when I moved there first I would have had an outlook of who knows where this will take me too but as I lived

there and as I got to work with the Dutch people and as I got used to Dutch and to understand the way the economy worked,

I liked working there and I liked the people there and I liked the art galleries and things like that so to me that was home. I

didn’t think I would uproot myself and go anywhere else. I just liked it, effectively.

Mr. Justice Morris. Was that an intention that you formed before you went there?

A. No.

Mr. Justice Morris. Or was it one that you acquired when you were there?

A. Yeah, I’d say I acquired it once I become comfortable speaking Dutch.”

The second is in the same volume at p. 68 as follows:

“176Q. Again, just to be clear do you say by the end of 1992, for whatever reason, you were not ever going to take that job

?.

A. I would say by the end of August 1992 I was absolutely sure I was never going to take either of those two jobs. Actually,

what you are saying is actually a key turning point because when I went back to work in Holland, I got used to living on my

own, I was used to living in a house on my own, no family around and my mental attitude towards, in terms of what was right

and what I wanted to do, was different. I had made an attempt to try and keep the family together by trying to get a job in

Ireland, that wasn’t of any interest to me. And then I went back, and I started living on my own in Holland, and I got used to

it, and as I said, this is where I am comfortable and this is where I am happy.”

I am satisfied that, looking at this evidence in the most favourable light possible so far as the husband is concerned, it established no

more than that the husband in 1992, because of his then circumstances, had no immediate intention of returning permanently to

Ireland. It remained entirely possible that if circumstances altered – such as an offer of a post in Ireland more attractive than the

ones that he had rejected earlier that year or the prospect of a reconciliation with his wife or a combination of both factors – he

would have returned to Ireland permanently. If that was still his state of mind at the time the divorce proceedings were instituted by

him in the Netherlands – and there is nothing to suggest that it was not – it falls well short of the formation of a settled purpose of

residing indefinitely in the Netherlands.

I think the same conclusion would inevitably follow, whether one treated the date of the initiation of the proceedings as the relevant

date or, as the trial judge in error decided, the date on which the divorce was granted. I have no doubt whatever that, even if one

were to accept at any points of conflict the testimony of the husband in preference to that of the wife, the overwhelming burden of

that evidence was that the continued residence of the husband and the wife in the Netherlands was inextricably linked to their then

personal circumstances, i.e. the availability to the husband of congenial and remunerative employment in the Netherlands and the

absence of any equivalent opportunities in Ireland. Evidence as to a form of residence in a foreign country so dependant on the

particular personal circumstances of the person alleged to have abandoned a domicile of origin is very far removed from the evidence

of a fixed intention to make one’s permanent home in a foreign country, which the authorities stipulate as the essential precondition

to a finding that a domicile of origin has been abandoned and a domicile of choice acquired.

I have considered the appeal so far on the basis that Mr. Durcan’s submission that the trial judge misunderstood the essential case

being advanced on behalf of the husband and also failed to resolve critical issues of fact is well founded. I think that his judgment

read as a whole – and even the passage which I have cited where he comes to his conclusions – indicates that he was fully aware of

the case being made on behalf of the husband, but even if he were not, I am satisfied that, for the reasons given, the conclusion

that the husband had not discharged the burden of proof as to the abandonment of the domicile of origin and the acquisition of the

domicile of choice was, in the light of the evidence, inevitable. That would have also been the situation if he had resolved the conflict

of evidence as to the circumstances in which the wife returned to Ireland with the children in August, 1992 – as Mr. Durcan urged he

should have done – and had decided it in favour of the husband. As to the other factual errors in the judgment on which Mr. Durcan

laid emphasis, I am satisfied that these related to peripheral matters which could not have had any significant bearing on the

resolution of the central issue as to domicile.

There remains the letter of the 16th December, 1993 in which the husband notified his lawyer of his intention to “change my domicile

to the Netherlands”. While the authorities make it clear that a declaration by the person concerned as to his domicile is a factor to be

weighed with the rest of the evidence, the context in which the declaration is made and its actual form is of importance in

determining what weight it should be given. While, in the absence of any finding by the trial judge, I am satisfied to approach that

letter on the basis that it was not written by the husband with any intention to deceive any person, the fact remains that it was

written by him in the context of the divorce proceedings and with the obvious intention on his part of ensuring, so far as he could,

that there was no obstacle to the granting of the divorce. In those circumstances, little significance can be attached to the letter in

the light of all the other evidence in the case.

The learned trial judge did not deal with another factor in the case which, on one view, even in the absence of all other

considerations, might well have proved fatal to the husband’s claim to have been domiciled in the Netherlands at the date of the

initiation of the proceedings on 2nd March, 1994. At that time, the husband had been offered the position in Ireland which he

accepted the following May at which stage, as he conceded, he abandoned any intention of living indefinitely in the Netherlands and

resumed his residence in Ireland. Since the authorities make it abundantly clear that one must look at all the surrounding

circumstances in determining whether the husband at the relevant time had formed the settled purpose of residing indefinitely in the

alleged domicile of choice, it would be unthinkable that one could disregard so significant a factor as the abandonment by him of any

plans to remain indefinitely in the Netherlands and his return to Ireland within a matter of weeks, rather than months, of the relevant

date. Since, however, this is not a matter on which the trial judge relied in coming to his conclusion on the question of domicile, it

should not, in fairness to the husband, be taken into account in determining this appeal.

I am satisfied that no useful purpose would be served in the present case by remitting the case to the High Court for a further

hearing, despite the errors and omissions which have been identified in the judgment under appeal, since the admitted and agreed

facts in the case could lead to only one conclusion, i.e. that the husband had failed to discharge the burden of proof resting on him of

establishing that the domicile of origin had been abandoned and a domicile of choice in the Netherlands acquired.

I would dismiss the appeal and affirm the order of the High Court.