Fraudulent misrepresentation regarding marital status does not bar a claim for damages for loss of spouse status.

THE SUPREME COURT

S.C. No. 100 of 2003

IN THE MATTER OF THE COURTS OF JUSTICE ACT, 1947

Denham, J.

Murray, J.

McGuinness, J.

Fennelly, J.

McCracken, J.

BETWEEN

CK

Applicant

And

JK

Respondent

And

F McG

Notice Party

Judgment delivered on the 30th day of March, 2004 by Murray J.

The respondent’s defence in these proceedings pending before the Circuit Court is based on his own deceit and fraudulent

statements.

He says that by reason of his own deceit and fraudulent misrepresentation concerning his marital status he cannot be treated as if he

had been, at any time, validly married to the Applicant with whom he went through a ceremony of marriage at the Registry Office,

Dublin on the 25th March, 1983. Thereafter he cohabited with her as husband and wife for seventeen years, there being two children

of that ‘marriage’. They lived in the family home, purchased in joint names, where they continue to reside, with the two children

pending the determination of these proceedings. The relationship between both parties having broken down, the applicant initiated

proceedings in the Circuit Court in September, 2001 seeking an order of judicial separation pursuant to the Judicial Separation and

Family Law Reform Act 1989 and various other reliefs pursuant to that Act including sole custody of the dependant children,

maintenance as well an order in respect of the family home pursuant to the Family Home Protection, Act, 1976.

The respondent in resisting the applicant’s claim before the Circuit Court on the grounds that he was never lawfully married to her

asserts that she does not, and never did, enjoy the status of his wife. Accordingly, she is not entitled to the remedies which she

seeks pursuant to the Act of 1989 or any other remedies based on the premise that they were lawfully married such as any order

pursuant to the Act of 1976.

As a result of the issues which arose from this defence the learned Circuit Judge stated a question of law for the opinion of this Court

pursuant to section 16 of the Courts of Justice Act 1947. I will come to that question in a moment, but first of all I would summarise

briefly the relevant facts relied upon by the respondent and set out in the Case Stated.

The respondent married for the first time, in Dublin, on the 7th September, 1968. There was one child of that marriage. In or about

1972, that marriage having failed, the respondent and his wife separated. His wife followed her own career, and did not seek

maintenance from him. Since then she effectively had nothing more to do with him and carried on her life quite independently of him.

In the late 1970s the respondent and the applicant developed a relationship. In 1981 and 1982 the respondent had occasion to go to

the State of Ohio, in the United States, on business trips. With the assistance of an attorney there, with whom he had a social

friendship, he applied to the courts in Ohio for a divorce in respect of his marriage in 1968 to his wife. He lodged with the Ohio court

papers calculated to mislead it by providing incorrect information relating to an address which he claimed to have in Ohio State and as

regards his residency there. This deceit he persisted in to the final hearing of the application and the purported granting of the

divorce by the court in Ohio in March, 1982.

His wife of the marriage of 1968 was notified of the divorce application but according to the findings of the learned Circuit Judge was

more bemused than anything else by the application since, having lived a life totally independently of the respondent for many years

and not wishing to have anything to do with him, she did not consider it could have any practical effect from her point of view.

Therefore she took no active interest in the divorce application.

In 1983 he applied to the general register office in England for recognition of the Ohio divorce but this was refused.

All this was done in the context of both the applicant and the respondent desiring to be married. When it came to the marriage the

applicant, being aware of the earlier marriage, sought the divorce order which the respondent had informed her he had obtained. As

found by the learned Circuit Court Judge and set out in the Case Stated, “… on its reading it seemed to her that a judge of capable

authority, who had the attendance of the respondent in court and was satisfied of all legal requirements, had granted the divorce

sought.”

The learned Circuit Judge also found in his judgment, annexed to the Case Stated, that the respondent, “realising he was not

properly divorced, actively concealed that fact from the Registrar and from her” [the applicant].

From the findings of the learned Circuit Judge and the facts set out in the Case Stated it is clear that the applicant bona fide entered

into the marriage which was solemnised at the Registry Office Dublin in March, 1983.

It is common case that a divorce obtained in the United States in respect of a marriage solemnised in Dublin, where both parties are

domiciled in Ireland, could not be regarded as a valid divorce in law. Moreover, the respondent having, on his own admissions,

knowingly deceived the court in Ohio, knew that it had been improperly obtained, even in terms of the law of Ohio. He relies on his

deceit and the invalidity of the Ohio divorce as a basis for resisting the applicant’s otherwise legitimate claims. He deceived the

applicant by presenting her with a copy of the Ohio order for divorce as a valid divorce entitling him to become lawfully married to her.

That was manifestly a fraudulent misrepresentation designed to, and which had the effect of, inducing her to go through the marriage

ceremony in Dublin. A key issue which arose in the Circuit Court was whether the respondent was estopped as between himself and

the applicant, from relying on the unlawful status of the marriage ceremony which he went through with the applicant. Could he rely

on the invalid and ineffective nature of the Ohio divorce to resist the remedies which the applicant now sought as an estranged wife

having previously relied on that divorce as being valid for the purpose of inducing her marry him? The question of law posed by the

learned Circuit Court Judge for the opinion of this court is in the following terms:-

“Whether I am entitled to hold in these proceedings as a matter of law, having regard to the findings of fact made by me,

that the respondent is estopped from denying that he is married to the applicant?”

Fundamentally, the answer to that question turns on whether the law and principles set out by this court in Gaffney –v- Gaffney

[1975] I.R. 133 applies. It is common case that if Gaffney –v- Gaffney does apply, the answer to the question posed by the learned

Circuit Court Judge must be in the negative.

I have read the judgement of the President of the Court, Denham, J. and I fully agree with her judgment and her conclusion that the

law as set out in Gaffney –v- Gaffney applies in this case.

I too have come to the conclusion that the law as stated in Gaffney –v- Gaffney is a comprehensive and complete statement of the

law related to the issue raised in the question posed in the Case Stated. Denham, J. has cited extensively the relevant passages from

Gaffney –v- Gaffney and, in order to avoid repetition, I will confine myself to citing what I consider to be the kernel of the decision in

that case; “The plaintiff was either his wife or she was not. Apart from other legal incidence in this country, certain constitutional

rights may accrue to a woman by virtue of being a wife which would not be available to her if she were not. The matter cannot

therefore, by any rules of evidence be left in a position of doubt nor could the courts countenance a doctrine of estoppel if such

existed, which had the effect that a person could be estopped from saying that he or she is the husband or wife, as the case may

be, of another party when in law the person making the claim has that status.”(Walsh, J. p.152).

However, there is one matter on which I would wish to add some observations and conclusions. I would state at this point that,

having regard to my conclusions on that matter and my agreement with judgment of Denham, J, I am of the view that the answer to

the question posed should be in the negative.

A remedy for a wrong?

The learned Circuit Court Judge when faced with the difficult issues raised in this case acknowledged the strength of the decision of

this court in Gaffney –v- Gaffney as authority for the law on this matter but also stated “I believe that justice between the parties

can only be achieved by prohibiting or estopping the respondent from attacking the validity of his divorce and by definition the

validity of his marriage to the applicant.”

The potential injustice of which he speaks is patent. The applicant bona fide went through a marriage ceremony with the respondent,

she lived with him as wife and husband for seventeen years and bore two children. The marriage relationship broke down (essentially

she says because of his problem with alcohol and related misbehaviour – although this is not strictly relevant to the legal issues) as a

result of which she claims to be entitled by reason of her status as a wife to the statutory protection which the law affords namely, a

judicial separation, custody of the children, maintenance and an order in respect of the family home. Absent the status of a lawfully

married wife she is denied these remedies or, as the learned circuit judge appeared to contemplate, any remedy at all.

It was also submitted on behalf of the applicant that this Court should be slow to give an answer to the question raised by the trial

judge which would mean that she would suffer such an injustice. It was submitted that this court should adopt principles of law which

would ensure that justice is available to her, and also to others, who find themselves in a similar factual circumstance. One can well

understand the concerns of the learned circuit judge and the reasons for that argument by the applicant in this Case Stated.

In a society based on the rule of law it would certainly be a major gap in its fabric if persons who have been wronged in the manner in

which the applicant has been in this case were to be left without remedy. In such a society the system of law is intended to be

complete, that is to say that within its framework it provides, in principle, a remedy for any denial of rights conferred by law or its

constitution (the extent of the remedy may be constrained by public policy considerations in the interests of the common good or,

where the right is conferred by law by the limited nature of the right, but none of these extra considerations seem to me to arise in

this context). Either the applicant has some remedy against the applicant or she has not.

Here is a woman who married and remained married for seventeen years and raised two children. When the marriage to her husband,

who has had an undisputed drink problem, breaks down, and she seeks the normal protection for which the law provides, the husband

produces the order for divorce which he enticed her to rely on and claims that it is all a fraud and that she should be denied

everything to which she thought she was entitled to as his wife. The applicant has sought to rely on the doctrine of estoppel as a

means of defending the consequences of being stripped ignominiously of the legal and constitutional status of a duly married wife.

Gaffney –v- Gaffney says that estoppel cannot apply in these circumstances as a remedy for the applicant. If, as has been

suggested, estoppel was the only remedy available to the applicant and in the absence of which she had no remedy at all, I would be

bound to entertain grave doubts as to whether that case was indeed a complete statement of the law on this matter. Therefore, I

feel it necessary to consider whether, as argued by the Attorney General in defence of the law as laid down in Gaffney –v- Gaffney,

whether there are indeed any alternative remedies available to a plaintiff in a similar fact situation as the learned Circuit Court Judge

found the applicant in this case to be.

Thus, this is a question of law arising in this Case Stated which for me is directly relevant to the question whether the law as

reflected in Gaffney –v- Gaffney is indeed the law as it applies to these circumstances having regard to the protection which the

Constitution gives to the institution of marriage, and married persons.

Article 41.3.1. provides “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.”

The next paragraph of that sub-article goes on to provide for the protection of persons who entered into a marriage contract but

whose marriage is later dissolved pursuant to that sub-article by ensuring, inter alia, that proper provision is made for the spouses

and any of the children of the marriage.

In commenting on the provision for continuing obligations of one former spouse to another even after dissolution of the marriage, I

stated in DT –v- CT [2002] 3 I.R. 355, 405 “This reflects the fact that marriage is, in principle, intended to be a lifetime

commitment and that each spouse has fashioned his or her life on that premise. If the law permitted a spouse to cut himself or

herself adrift of a marriage on divorce without any continuing obligation to the former spouse it would undermine the very nature of

the marriage contract itself and fail to protect the value which society has placed on it as an institution.”

Paragraph 3 of Article 41.3 of the Constitution provides: -

“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 parliament 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.”

These provisions of the Constitution are intended not only to protect the institution of marriage as such against attack but clearly

envisage that the rights of individuals, as married persons, should be protected.

Again, as I observed in DT –v- CT “… marriage [is] a solemn contract of partnership entered into between man and woman with a

special status recognised by the Constitution. … the moment a man and woman marry their bond acquires a legal status. The

relationship once formed, the law steps in and holds the parties to certain obligations and liability.” That status, with its concurrent

obligations and liabilities, is protected by the Constitution. When a person in good faith enters into a marriage contract, solemnised in

accordance with law, he or she is entitled to expect to enjoy their constitutional status and the protections which the law affords,

even in the event of its breakdown or ultimate dissolution.

If the law permitted a person to induce, by deceit or fraudulent misrepresentation, another to enter into an otherwise lawful marriage

and after many years of ostensible marriage to cut himself adrift without any obligation to the other person it would in my view

undermine the status of the marriage contract itself and the constitutional rights which that person was entitled to have protected

by virtue of that status. A prosecution for bigamy where a person enters into a second marriage in the full knowledge that a first

marriage is valid and subsisting may be a means of protecting the public interest but it is not a remedy which vindicates or protects

the rights of the injured party. A declaration as to status can afford protection to the legitimate spouse of the first marriage. In my

view it is a direct attack on the constitutional rights of a person for another to induce them or cause them to enter into a duly

solemnised marriage contract by deceit when the latter knows that he lacks the capacity to enter into a valid marriage by reason of a

pre-existing and subsisting marriage.

In bona fide participating in a marriage ceremony before a person duly authorised in the eyes of the State to perform it she was

entitled to the constitutional status of a married person; “certain constitutional rights may accrue to a woman by virtue of being a

wife” (Gaffney –v- Gaffney, 152). That was a right she was entitled to enjoy at least throughout the seventeen years when they

lived together as husband and wife with the consequential protections which the law provides should the marriage irretrievably break

down. She was denied those rights by the deceit and fraudulent misrepresentations of the respondent.

If a conspiracy to dismiss or a dismissal of an employee because of his refusal to undertake to join a trade union as a condition of his

employment is an actionable infringement of his constitutional right to associate or dissociate (Meskell –v- C.I.E. [1973] I.R. 121) I

can see no reason why it is not an actionable infringement of , in this case, a woman’s right to marital status if, having been

ostensibly lawfully married, she is denied it by reason of the deceit and/or fraudulent misrepresentations of her partner.

In Meskell –v- C.I.E. Walsh, J. held:- “It has been said on a number of occasions in this Court, most notably in the decision Byrne –

v- Ireland [1972] I.R. 241 that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or

enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and

that the constitutional right carries within it its own right to a remedy or for the enforcement of it.”

Walsh, J went on to state, “Therefore, if a person has suffered damage by virtue of a breach of a constitutional right or the

infringement of a constitutional right, that person is entitled to seek redress against the person or persons who have infringed that

right. As was pointed by Mr Justice Budd in Educational Company of Ireland Ltd –v- Fitzpatrick (No. 2) [1961] I.R. 345, 368 it follows

that “if one citizen has a right under the Constitution there exists a correlative duty on the party of other citizens to respect that

right and not to interfere with it.” He went onto say that the courts would act so as not to permit a person to be deprived of his

constitutional rights and would seek to it that those rights were protected.”

That is the position as I see it of the applicant in these proceedings. She is entitled to the protection of the courts for the

infringement of her constitutional rights.

That is not to say that the applicant must necessarily seek to enforce her rights by an action which does not fit into any of the

ordinary forms of action as Walsh, J. envisaged in certain circumstances in Meskel –v- C.I.E.

In McDonnell –v- Ireland [1998] 1 I.R. 134 at 147, Barrington J. commented on the remedies available to a plaintiff where the wrong

alleged may involve the infringement of a constitutional right but where there is nonetheless a cause of action under ordinary law. In

that respect he stated: -

“But in the passages quoted, Walsh, J. was dealing with special or exceptional cases where the general body of the law

provides no appropriate remedy. In the vast majority of cases legislation or the general body of the law would provide a

remedy. … The general problem of resolving how constitutional rights are to be balanced against each other and reconciled

with exigencies of the common good is, in the first instance, a matter for the legislature. It is only when the legislature has

failed in its constitutional duty to defend or vindicate a particular constitutional right pursuant to the provisions of Article 40.3

of the Constitution that this court, as the court of last resort, will feel obliged to fashion its own remedy. If, however, a

practical method of defending or vindicating the right exists, at common law or by Statute, there will be no need for this court

to interfere. … There is no doubt that constitutional rights do not need recognition by the legislature or by common law to be

effective. If necessary the courts will define them and fashion a remedy for their breach. There may also be cases where the

fact that a tort is also a breach of a constitutional right may be reason for awarding exemplary or punitive damages.

But, at the same time, constitutional rights should not regarded as wild cards which can be played at any time to defeat all existing

rules. If the general law provides an adequate cause of action to vindicate a constitutional right it appears to me that the injured

party cannot ask the court to devise a new and different cause of action. Thus, the constitution guarantees the citizens right to his

or her good name but the cause of action to defend his or her good name is the action for defamation. The injured party, it appears

to me, has to accept the action for defamation with all its incidents including the time limited within which the action must be

commenced.”

Counsel for the Attorney General in submitting that there are remedies available to the applicant other than a resort to estoppel in

this case a referred to the Report on Nullity of the Law Reform Commission which remarked that “The general principles of the law of

tort, contract, and property, would appear to be clearly capable of rendering significant protection to a person who entered into

marriage as a result of fraud or duress.” Counsel also referred to the statement in the third edition of McMahon and Binchy, Law of

Torts, where it was observed at para. 35.09 “Misrepresentations of law give rise to some uncertainty. The general rule is that

misrepresentation must be one of fact rather than law. Clearly the boundaries between fact and law cannot easily be drawn in some

cases. If a man represents that he is legally entitled to marry and fails to mention that he is already in a valid subsisting marriage,

he may be sued for deceit by the woman he dupes …”

In Forshall and Anor –v- Walsh and Ors (unreported) High Court, 18th June, 1997, at page 64 of his judgment, Shanley, J. held:-

“A plaintiff seeking to establish the commission of the tort of fraud or deceit must prove –

(i) The making of a representation as to a past or existing fact by the defendant

(ii) that the representation was made knowingly, or without belief in its truth, or recklessly, careless whether it be true or

false

(iii) that it was intended by the defendant that the representation should be acted upon by the plaintiff

(iv) that he plaintiff did act on foot of the representation and

(v) suffered damage as a result.

Where fraudulent misrepresentation is alleged it must be established that the representation (as defined above) was intended

to and did induce the agreement in respect of which the claim for damages arises.”

Counsel for the Attorney General also drew the attention of the court to the dicta of Mellish L.J. in the court of appeal of England and

Wales in Meluish –v- Milton [1876] 3 C.h. D.27 where he stated, in the context of a case concerned with the probate of a will,

“Though we term the conduct alleged in this case fraudulent concealment, it is equivalent to fraudulent misrepresentation. When

the lady went through the ceremony of marriage with the testator she in effect represented to him that she was capable of

becoming his lawful wife and every day whilst they were living together, she must be taken as continuously representing to him that

she was his lawful wife. If at the same time she knew that her former husband was alive, this is what the court would take notice of

as fraudulent misrepresentation. For what purpose were these representations made? To obtain all the benefits of the position of

the testators lawful wife, and a testamentary provision in case she survives her husband, is one of the advantages which a wife

most naturally expects. The representations must, therefore, be treated as made, among other things, for the purpose of obtaining

a will in her favour and it makes no difference whether this particular advantage was actually present to her mind or not. This,

therefore, is a suit to set aside a will as having been obtained by fraud …”

For the purposes of this Case Stated, on the basis of the facts as found by the learned Circuit Court Judge, I am quite satisfied that

the applicant would have a remedy in law for actionable deceit grounded on the fraudulent misrepresentations of the respondent.

I emphasise that this is based on the facts as found by the learned Circuit Court Judge in the proceedings before him because should

the plaintiff initiate other proceedings against the applicant the onus would be on her, in the ordinary way, to establish the necessary

facts entitling her to any relief claimed.

In order for such an action to be considered, in the words of Barrington, J. an “appropriate remedy” for the infringement of

constitutional rights any order which a court may make where deceit is established should provide a reasonable measure of

compensation for the consequential and foreseeable loss which a plaintiff has sustained. Clerke and Lindsell on Torts (13th edition)

para. 1648 notes that in actions for fraud “The damages are at large and are to compensate the plaintiff for all the loss he has

suffered.” It is also interesting to note in a decision of the Alberta Supreme Court, McDonald, J. in Beaulne –v- Ricketts [1979] 96

D.L.R. (3d) 550, held “In this case, as in the Graham case, the defendant was guilty of deceit and fraudulent misrepresentations. By

such he induced the plaintiff to marry him, and as a result she became pregnant. Although the plaintiff in this case did not give birth

to a child as a result of the pregnancy, she did as a result suffer a hysterectomy. The relationship lasted for about twelve years.

There can be no doubt that the deceit of the defendant seriously prejudiced any hope of the plaintiff for a proper marriage. Had

there been a valid marriage in 1965 that broke down in 1977, the plaintiff would be entitled to claim maintenance from the

defendant …” As Counsel for the Attorney General pointed out McDonald, J. did not actually award maintenance but took the

possibility of maintenance into account in assessing damages.

It seems to me that in any action for deceit based on the kind of facts which have been found by the learned Circuit Court Judge in

these proceedings, a court would be entitled, in awarding damages, to taken into account the statutory and other entitlements of a

plaintiff who was separated from her ostensible husband and to which she would have been so entitled if in fact there had been a

valid marriage.

In Meskel –v- C.I.E. Walsh, J. in considering the remedies available for breaches of constitutional rights also held “In each of these

cases the injured party is entitled, in my view, to recover damages for any damage he may have suffered by reason of the

dismissal or penalty resulting from his insistence upon exercising his constitutional right, or his refusal to abandon it or waive it.”

A plaintiff who established similar facts to those found by the learned Circuit Court Judge, has in my view, as already indicated, a

cause of action for deceit based on fraudulent misrepresentation and the damages to be awarded in such an action should be

informed by the constitutional right of the injured party to recover damages necessary to vindicate that right having regard to the

loss suffered by reason of being wrongfully deprived of the status of a spouse after a long period of ostensible marriage.

As regards any question arising under the Statute of Limitations Act, 1957, as amended, I consider that the submissions of the

Attorney General are correct in that these may be governed by any continuing fraud or concealment on the part of a defendant of his

true capacity to marry.

Having come to the conclusion that there is a remedy available to a party who finds himself or herself in the position of the applicant

as set out in the facts found by the Circuit Court, it cannot be said that the application of the law as set out in Gaffney –v- Gaffney,

whereby some form of remedy by way of estoppel is denied to the applicant, would, as a result, deprive her of any adequate remedy

for the infringement of her rights which she has suffered.

As indicated at the outset, for the foregoing reasons and those set out in the judgment of Denham, J., the question posed by the

learned Circuit Court Judge should be answered in the negative.

It has not been relevant to consider whether any conduct of the respondent as found by the learned Circuit Judge could amount to a

breach of the criminal law. The Circuit Court still has seisin of the final determination of this case and it is in my view a matter for the

learned Circuit Court Judge whether, in the exercise of his discretion, he considers there are any grounds for directing that the papers

in this case be sent to the Director of Public Prosecutions.