Judicial separation dismissed where marriage is void due to respondent's prior valid marriage.

THE SUPREME COURT

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989

AND

IN THE MATTER OF THE FAMILY LAW ACT 1995

AND

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947

Denham J.

Murray J.

McGuinness J.

Fennelly J.

McCracken J.

BETWEEN

C.K.

APPLICANT

AND

J.K.

RESPONDENT

AND

F.McG

NOTICE APRTY

JUDGMENT delivered by Mrs Justice McGuinness on the 31st day of March 2004

This is a Consultative Case Stated for the opinion of the Court by His Honour Judge Patrick McCartan, a judge of the Circuit Court

assigned to the Dublin Circuit, pursuant to section 16 of the Courts of Justice Act 1947. The Case Stated arises in proceedings where

the applicant C.K. seeks a decree of judicial separation, together with ancillary relief under the Family Law Act 1995. The respondent

J.K. has filed a defence and counterclaim in which he seeks a declaration of nullity due to incapacity on his part on account of his

prior valid marriage to the notice party.

The Facts

The facts are fully set out in the Case Stated and in the reserved judgment of Judge McCartan delivered on the 29th day of January

2003 and annexed by him to the Case Stated. They may be summarised as follows.

The respondent married the notice party F. McG on the 7th September 1968. There was one child of the marriage born on the 29th

May 1969. In or about the year 1972 the marriage broke down and the parties thereafter lived separate and apart. The notice party

who is a teacher by profession supported herself and the child of the marriage and appears neither to have sought nor received any

form of maintenance from the respondent.

In or about 1979 the respondent met the applicant and formed a social relationship with her. The respondent also commenced work in

the same company as the applicant and as a result was sent on short training courses which took place in the State of Ohio in the

United States of America. At this point the respondent was anxious to marry the applicant and therefore wished to terminate his

subsisting marriage with the notice party. While in Ohio he met an attorney who, on learning of the respondent’s desire to be

divorced, assured him that he could secure a divorce for him without any difficulty despite the absence of the necessary legal

requirements of residency and other matters. Documents were prepared based on incorrect information relating to an address of

residence and time spent in Franklin County in the State of Ohio. The respondent had spent two training trips in Ohio each lasting

three to four weeks in the months of May and November 1981. While he was in Ohio he stayed in a local hotel.

In November 1981 the notice party was served with the respondent’s application for a divorce in Ohio. She decided to ignore it as

matters between her and the respondent had long been settled.

In March 1982 the respondent returned to Ohio for the final hearing of the application for a divorce. The divorce was granted based

on the incorrect information furnished to the Ohio Court. Notice of the granting of the divorce decree was served on the notice party.

The order of the Ohio Court included provision for maintenance to be paid for the child of the marriage but the notice party correctly

anticipated that no such maintenance would be paid by the respondent. However, the notice party believed that the divorce was

effective and that she was no longer the wife of the respondent.

During the period from1979 to 1982 the applicant and the respondent continued their personal relationship and were also working

together in the same company. The applicant was informed by the respondent of the Ohio divorce. She believed that it was effective

and that the respondent was now free to marry her.

In February/March 1983 the respondent corresponded with the Register Office in Newcastle-upon-Tyne, England, seeking to arrange a

registry office marriage between himself and the applicant in that city. On 14th March 1983 the superintendent registrar in

Newcastle-upon-Tyne wrote to the respondent informing him that the registrar-general had been unable to recognise the divorce

decree granted by the Court in Ohio. An accompanying letter explained that neither the respondent nor the notice party were U.S.

nationals or habitually resident in the State of Ohio at the time of the divorce and both were domiciled in Ireland at the time of the

divorce and that therefore the decree would not be recognised in English law. At the hearing in the Circuit Court it was in issue

between the parties as to whether the applicant was aware of this correspondence. The learned Circuit Court judge found as a fact

that the applicant was not aware of the correspondence and was convinced that the Ohio divorce was fully effective.

On the 25th March 1983 the applicant and the respondent were married at the Registry Office in Dublin. The application to the

registrar in Dublin was on the basis that the respondent was a bachelor. No information concerning the Ohio divorce was given to the

registrar. The applicant and the respondent lived together as husband and wife for in or about seventeen years. They had two

daughters born on the 24th April 1987 and the 13th April 1991. They purchased a family home in joint names in Co. Dublin where at

the time of the hearing before the Circuit Court they continued to reside together with the children pending the determination of the

judicial separation proceedings.

The relationship between the parties broke down over a period and in 1999 the applicant obtained a protection order from the District

Court. On the 21st September 2001 she issued her family law civil bill in the Circuit Court seeking judicial separation and the relevant

ancillary reliefs. On the 10th June 2002 the respondent filed his defence and counterclaim in which he sought a declaration pursuant

to section 29(1) of the Family Law Act 1995 that the divorce obtained by him from the Court of Common Pleas, State of Ohio, United

States of America, was not entitled to recognition in the State and a declaration pursuant to section 29(1) of the Family Law Act

1995 that the purported ceremony of marriage entered into between himself and the applicant on the 25th March 1983 was null and

void and of no effect.

The Proceedings in the Circuit Court

The matter came before the Circuit Court on 22nd January 2003 by way of a preliminary issue in the proceedings issued by the

applicant. It appears that the respondent had issued a motion seeking to join F.McG as a notice party to the proceedings. The motion

papers are not annexed to the Case Stated but the matter is referred to in the judgment of His Honour Judge McCartan. It appears

that in granting the order joining F.McG as a notice party the Court directed that as a preliminary issue there should be a hearing as

to whether the Ohio divorce was valid and carried the force of law in this jurisdiction. At that hearing submissions were made on

behalf of both the applicant and the respondent in regard to the validity of the Ohio divorce in the light of the established law on the

recognition of foreign decrees of divorce. In addition counsel for the applicant argued that, given the facts of the case and in

particular the lapse of time since the couple were married, the respondent ought not be permitted to impugn the validity of their

marriage. This argument was based on the general principles of estoppel and on the basis that justice could only be achieved in the

case by giving legal recognition to the relationship between the parties which had existed for a long period of time. The learned Circuit

Court judge adjourned the matter to consider these submissions and gave judgment on 29th January 2003. As a result of his findings

as expressed in his judgment he decided to state the present case for the opinion of this Court. At paragraphs 7 and 8 of the Case

Stated he set out his findings in the matter as follows:

“7. I have found that in this case, given the particular facts of the case, justice can only be achieved by the use of estoppel

whereby the respondent would not be allowed to challenge, at this remove, the validity of his original divorce. The particular

facts that apply include:

(a) The respondent’s original spouse, Ms McG was aware of the making of the application and did not object.

(b) The respondent’s original spouse, Ms McG, was not adversely affected by the making of the order of divorce.

(c) The child of the respondent’s marriage to Ms McG is not adversely affected by the continued existence of the

divorce.

(d) If the respondent was to apply for dissolution of his first marriage today he would be entitled to a divorce in this

jurisdiction without any difficulty. At the time of the granting of the Ohio divorce such a remedy as not permitted in this

jurisdiction,

(e) The respondent has enjoyed the benefits and status of being both the spouse of the applicant for seventeen years

and the father of two children of that marriage.

(f) The applicant and her two children would suffer significant diminution of status and reduction of financial rights should

the validity of her marriage be undermined.

(g) No collusion or complicity can be laid at the feet of the applicant in the application for a licence to marry the

respondent.

(h) I adjourned my decision to 29th January 2003 so as to consider the submissions that had been made. I believe that

justice between the parties can only be achieved by prohibiting or estopping the respondent for attacking the validity of

his divorce and by definition the validity of his marriage to the applicant. However, given the law as stated, I accept

that the concept of estoppel as a remedy, well suited to offer a solution in this case, is a judge-made and developed

principle. I believe it is preferable for the parties to this action that prior to a final determination of the case that the

Supreme Court be consulted on this issue.”

The learned Circuit Court judge then sets the following question for the opinion of this Court:

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

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

The Proceedings before this Court

The Case Stated was first listed for hearing before this Court on the 3rd June 2003. At that point the Court was informed that

pursuant to section 29(4) of the Family Law Act 1995, notice had been served on the Attorney General of the respondent’s

application for a declaration under section 29(1) of the 1995 Act and that, subsequent to the trial judge’s judgment and his decision

to state a case to this Court, the Attorney General had been joined as a party to the proceedings. The Attorney General was

represented by senior counsel before this Court.

In addition the Court was informed that the notice party had been present in the Circuit Court on the occasion of Judge McCartan’s

ruling concerning the Case Stated and that she had indicated to the Court that she wished to take no further part in the proceedings.

Judge McCartan had accordingly dispensed with service on her of any further notice concerning the present application to this Court.

Unfortunately there does not appear to be any copy of the orders made by the Circuit Court in either of these two matters included in

the papers provided to this Court in the present proceedings.

Having considered the matter, this Court was of the view that the interest of the notice party and her child could well be affected by

the outcome of the proceedings in this Court, that she should be informed of the course of the proceedings and if possible be present

and/or be legally represented at the hearing of the Case Stated. The Court therefore directed that the applicant was to serve all

relevant matters on the notice party and that she was to be informed of the view of the Court. The proceedings were adjourned to

enable these directions to be put into effect.

Subsequently the notice party informed the Court that she could not afford to pay for legal representation and that no form of civil

legal aid was available to her. She would, however, attend the hearing in person. This she did. She also put forward her views on the

matter in a letter to the Court and in a brief oral submission at the hearing, to which I shall refer later.

Submissions of Counsel

At the outset it was accepted by all parties that at the date of the inception of the Ohio divorce proceedings neither the respondent

nor the notice party were domiciled in Ohio. The divorce preceded the enactment of the Domicile and Recognition of Foreign Divorces

Act 1986 and therefore fell to be considered under the recognition rules established by this Court in W v W [1993] 2 IR 476. It failed

the test of recognition set out in that case. The decision of the High Court in G. McG v D.W. [2000] 1 IR 96 was irrelevant to the

present case as neither party had at any time been ordinarily resident in Ohio.

In addition it was accepted that the Ohio divorce, like the English divorce in the case of Gaffney v Gaffney [1975] IR 133, was

obtained by the making of false assertions regarding residence and other matters to the Ohio Court and was therefore of doubtful

validity even in Ohio. The respondent’s subsequent purported marriage to the applicant was therefore bigamous. Senior Counsel for

the applicant, Mr Durcan, submitted that the respondent, in the particular circumstances of this case, should not in answer to the

Applicant’s claim be allowed to deny that he was validly married to her. The reason why he should be so debarred was that his

conduct towards the applicant had been such that it would be inequitable and contrary to justice to allow him to rely upon such a

denial. Mr Durcan drew attention to the trial judge’s conclusion that justice between the parties could 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 applicant’s case was not that the estoppel conferred on her the status of a spouse of the respondent but rather that he was

precluded in these proceedings from saying that she did not enjoy such status.

Mr Durcan went on to refer to the decisions of the High Court (Kenny J.) and of this Court in Gaffney v Gaffney [1975] IR 133. In that

case there were three interrelated arguments concerning estoppel. Firstly, it was argued that the plaintiff in that case was estopped

from asserting the invalidity of her English divorce by the record of the English Court. This was the only form of estoppel argued in the

appeal to this Court and this Court held that the principle of estoppel by record could not apply unless the Court upon whose record

the estoppel was based was competent to exercise jurisdiction. In the present case no suggestion is made that estoppel by record of

the Court in Ohio could apply.

Secondly the general question arose as to whether the doctrine of estoppel could ever apply where the matter in issue was the

validity of a marriage. Mr Durcan submitted that there was general agreement among the authorities that marital status per se could

not be effected by a doctrine of estoppel That position was confirmed by the judgments of Kenny J. in the High Court and of Walsh J.

in the Supreme Court in the Gaffney case. Mr Durcan was not suggesting in the present case that the applicant could acquire the

status of a wife by means of a doctrine of estoppel. Thus the argument which he was making, he said, did not require a rejection of

the decision of this Court in Gaffney v Gaffney.

The third and most difficult question concerning estoppel was whether a spouse who had obtained a foreign divorce could later claim

that it should not be recognised so that he or she could obtain some pecuniary advantage as against his or her spouse or their

estate. This question was examined by Kenny J. in the High Court who was of the view that a spouse was not estopped from denying

the validity of a divorce even if the purpose and effect of such denial were to obtain a pecuniary advantage as against the other

spouse and the gaining of such advantage would be inequitable in the particular circumstances. In reaching this view, Mr Durcan said,

Mr Justice Kenny based his judgment to a considerable extent on the proposition that it would be extremely undesirable if a person

was married for certain purposes but unmarried for others. Mr Durcan however suggested that the application of the principle of

estoppel would not have the effect which was contemplated by Mr Justice Kenny. The application of the doctrine of estoppel which

was argued on behalf of the applicant was not to hold that the foreign divorce had effected a change in the status of the parties but

to hold that the original assertion of its validity by a spouse may be a sound reason for denying that spouse a specific remedy. The

issue of status would not be affected – the divorce could not be recognised. But a particular remedy which would normally flow from

the non-recognition of the divorce would be denied.

Mr Durcan argued that on account of the many social and legal developments in the field of family law that had occurred since 1975 it

was desirable that this Court should re-consider the question of the application of the principle of estoppel in the limited

circumstances outlined above. He pointed out that in the absence of divorce in this jurisdiction a considerable number of people

applied for divorces in foreign jurisdictions, often when they had little or no link with the jurisdictions in question. They then entered

into new marriages and often lived with their new partner for many years displaying all the normal characteristics of family life. It was

inevitable that difficult cases would emerge where litigants would attempt to gain an unfair advantage from their particular status. It

was right that the law should give an appropriate remedy to defeat such efforts.

Mr Durcan went on to refer to the use of estoppel to prevent a litigant denying the validity of a marriage in unconscionable

circumstances in the law in the United States and Canada. He referred to the American Law Institute Re-Statement of the Law from

1934 onwards and in particular to the cases of Mayer v Mayer [1995] 66 N.C.App. 522 (a North Carolina case) and Downtown v Royal

Trust Company et al. (1972) (34) D.L.R. (3d) 403, a judgment of the Supreme Court of Canada.

In oral submissions before this Court Mr Durcan relied to a considerable extent on the distinction between judgments and decisions

that were in personam and those which were in rem. He argued that in the family law regime in this jurisdiction the application of the

in camera rule was so strict that the vast majority of orders were made in personam and had application only to the parties involved

in the litigation. Under the legislation and the Court rules there was no necessity for notice to be given to third parties or to the world

in general of the orders made in family law proceedings and indeed on the present interpretation of the in camera rule such publication

was in fact forbidden. This was in contrast to the position in the English jurisdiction where both the legislation and the rules gave an

important role to decrees being pronounced in open Court, to the public interest role of the Queen’s Proctor, and to the issuing of the

decree nisi. Even if it were accepted that a decree of divorce made under the 1996 Act was a judgment in rem since it altered the

status of the parties, Mr Durcan argued that a decree of judicial separation (which could, under section 8 of the Judicial Separation

and Family Law Reform Act, 1989, be rescinded by consent of the parties) and the ancillary orders made under such a decree were

orders in personam. The doctrine of estoppel could therefore be more readily applied in judicial separation proceedings which did not

alter the marital status of the parties.

Senior Counsel for the applicant also referred to the provisions of section 29 of the Family Law Act 1995, the effect of which has

been considered by this Court in G. McG v D.W. (No. 2) [2000] 4 IR 1. It was clear that declarations pursuant to section 29 of the

Act of 1995 operated in personam rather than in rem. Such declarations were binding on “the State” only if the Attorney General had

been made a party to the proceedings (section 29(8)). Thus many declarations made under section 29(1) as to the validity or

otherwise of a marriage would be binding only on the parties to the proceedings – a situation not unlike that which was so strongly

condemned by Kenny J. in Gaffney’s case, a situation where a person could find himself married for some purposes and unmarried for

others. Section 29 had introduced into our law in relation to marital status the concept that a declaration could be binding on some

but not on all, on the parties but not on the world. Once it was accepted in law, as it was in section 29, that a person or persons

could be obliged and bound at law to accept a particular individual as married or unmarried, while other persons were no so obliged or

bound, then the arguments for refusing to apply the concept of estoppel at all in the area of marital status substantially disappeared.

In conclusion Mr Durcan argued that the fundamental submission of the applicant that it was possible by using the doctrine of

estoppel to being about a just result as between herself and the respondent while not altering the status of any of the parties to

these proceedings by reason of such estoppel. He pointed out that in very similar circumstances in the case of W v W [1993] 2 IR 476

at 495 Egan J. had said:

“The defendant in this case participated in a solemn ceremony with the plaintiff which quite clearly they treated as being a

valid marriage as a consequence of which four children were born. He ought not now in any event be entitled to argue that it

was a nullity.”

Senior Counsel for the respondent, Mr Hogan, firstly stressed the nature of the proceedings brought by the applicant. The

endorsement of claim on her Family Law Civil Bill opened with an assertion that she and the respondent were lawfully married on the

25th day of March 1983. The reliefs which were sought by her were sought on the basis of her marriage with the respondent. The

reliefs which were sought were statutory reliefs as set out in the Family Law Act 1995. Her proceedings were clearly not purely

private law proceedings but were proceedings brought within a statutory framework contained both in the Judicial Separation and

Family Reform Act 1989 and in the Family Law Act 1995. She now sought through the means of an estoppel to circumvent the fact

that her purported marriage to the respondent was void ab initio. In order to obtain the relief of judicial separation the Circuit Court

must hold firstly that she and the respondent were legally married and secondly that, as set out in paragraph 6 of her endorsement of

claim, that the marriage between the parties had broken down to the extent that no normal marital relationship had existed between

them for at least one year prior to the date of the application, or, in the alternative that the respondent had behaved in such a way

that the applicant could not reasonably be expected to live with him. Not until the Court had decided these matters could the Court

grant the ancillary financial and other reliefs sought by the applicant.

Mr Hogan went on to analyse the ratio of the decision in Gaffney v Gaffney [1975] IR 133. He submitted that it was clear from the

judgments in Gaffney that there could be no question of an estoppel to prevent a party demonstrating that a foreign divorce decree

was given without jurisdiction. This was the clear ratio decidendi of that decision. While the Supreme Court appeal had been argued

and decided on a somewhat narrower ground there was no question of this Court overturning or disagreeing with the decision of

Kenny J. in the High Court in regard to the appropriateness of estoppel in the circumstances of that case. Accordingly, Mr Hogan

argued, unless Gaffney was to be overruled it was the governing authority which compelled the learned Circuit Court judge to rule

that the Ohio divorce was given without jurisdiction and was invalid. The doctrine concerning estoppel in matrimonial proceedings as

set out in Gaffney was inconsistent with the American authority contained in Mayer v Mayer and the American Law Institute

Restatement of the Law. It was also totally contrary to the preclusion doctrine as operated from time to time by the Canadian Courts.

In dealing with the question as to whether the decision in Gaffney v Gaffney should be overruled, Mr Hogan referred to a number of

cases regarding the precedential effect of earlier authorities, including Mogul of Ireland v Tipperary (NR) County Council [1976] IR

260, Re Illegal Immigrants) (Trafficking) Bill [2000] 2 IR 360 and O’Brien v Miller Group Newspapers Limited [2001] 1 IR 1 and D.H. v

Groarke (unreported Supreme Court 31st July 2002). Counsel for the respondent submitted that the social and legal developments

which had taken place since 1976 could not in themselves justify the reversal of a major decision of the first importance in the area of

family law. No key arguments were overlooked in Gaffney and there were no compelling reasons while it should now be overruled. On

the contrary if it were to be overruled it would lead to results just as anomalous in 2003 as they were in 1975.

Mr Hogan also stressed the overwhelming public interest in certainty in regard to the status of marriage which might on occasion lead

to injustice in individual cases.

With regard to the nature of orders and judgments in matrimonial matters counsel for the respondent submitted that despite the fact

that a decree of divorce was issued by a Court sitting in camera it was clear that such a decree must be a decree in rem. It was

made not only on a statutory but on a constitutional basis; it affected the status of the parties and had numerous public effects. It

might be argued that a decree of judicial separation had certain hybrid qualities especially with regard to its “divorce a mensa et

thoro aspects” but it must be accepted that the statutory jurisdiction to grant the decree and the reliefs ancillary thereto was based

on the status of marriage and it was therefore a decree in rem. Mr Hogan also referred briefly to declarations under section 29 of the

Act of 1995 and admitted that the section was somewhat peculiarly worded. He suggested that it was a derogation from the rule that

all orders regarding matrimonial status are orders in rem.

Senior counsel for the Attorney General Ms O’Toole adopted the submissions made by Mr Hogan. In addition she emphasised the

overriding public interest in certainty in questions of marital status. She referred to the commentary by Dicey and Morris (Conflicts of

Law 13th edition vol 2 page 762) on the Canadian case of Downton v Royal Trust Company on which Mr Durcan had relied in his

argument. Ms O’Toole pointed out that in that case the Supreme Court of Canada had drawn a sharp distinction between “strictly

matrimonial causes” and other types of case. It had observed that “any ethical factors underlying the preclusion doctrine are

submerged in overriding considerations when an invalid divorce decree is pressed in a strictly matrimonial cause”, for “marital status

per se cannot be altered or perpetuated by a preclusion doctrine”. Dicey and Morris had commented that “the difficulty is, as

American and Canadian Courts have discovered, that if fixed rules of law are departed from in the interest of justice in the individual

case, all certainty in questions of marital status is lost”.

Ms O’Toole went on to draw attention to the importance of the constitutional status of marriage as emphasised in Article 41 of the

Constitution. Inalienable and imprescriptible rights flowed from that status. This had been referred to by Walsh J. in Gaffney v Gaffney

where he said (at page 152):-

“The paramount issue in the present case is the status of the plaintiff and her husband at the date of his death. The plaintiff

was either his wife or she was not. Apart from other legal incidents 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

rule of evidence be left in a position of doubt nor could the Court 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 that claim has that status.”

Ms O’Toole submitted that Walsh J’s dictum was the definitive statement of the law in relation to the issue of estoppel. For the Court

to grant to the applicant the order for which she contended would lead only to further confusion between the spouses as to the

validity or otherwise of their marriages and bring about a state of great uncertainty.

Ms O’Toole went on to refer to the various taxation and other provisions of public law which flow from the status of marriage. If,

through the operation of an estoppel, the applicant was granted a decree of judicial separation and, for example, a property

adjustment order by which she made a capital gain, were the Revenue Commissioners to treat this capital gain as being one from a

husband to a wife or from one unmarried partner to another? This was but one example of the type of anomaly that could arise.

On the other hand Counsel for the Attorney General fully acknowledged the injustice of the applicant’s position in the circumstances.

She suggested that there were alternative remedies opened to the applicant and in particular suggested that the applicant could rely

on an action alleging the tort of deceit the elements of which were set out in Derry v Peek [1889] 14 App. Cas. 337 and more

recently by Shanley J. in Forshall v Walsh (unreported, High Court, 18th June 1997). In putting forward this possible solution Ms

O’Toole referred to the Canadian cases of Graham v Saville [1945] 2 DLR 489 and Beaulne v Ricketts [1979] 90 60 LR (3d) 550, and

also to the English case of Shaw v Shaw [1954] QB 429. She suggested that the measure of damages in such an action would be

such that would restore the innocent party to the position she would have been in if the misrepresentation had not been made.

Commenting on section 29 (8) of the Family Law Act 1995, Ms O’Toole submitted that the purpose of section 29(8) was to ensure

that the State would not be bound by judgments where its interest had not been represented, given the public interest in matters

relating to the marital status of individuals. Thus, if there was any question of fraud, collusion or possibly even new evidence going to

the res of a judgment, the State could intervene in the proceedings in the public interest, and bring the matter back before the

original tribunal for review.

The notice party, F.McG, put her personal position in regard to the proceedings before the Court by way of a letter addressed to the

Registrar of this Court dated 9th October 2003. In the course of this letter she stated:-

“I wish to notify the Court that it is not my intention to be legally represented at the hearing on October 29th/30th. The Court

will be aware that the Office of the Attorney General has refused me legal costs. My financial situation is such that I am not in

a position to meet the costs likely to be incurred in a two day hearing in the Supreme Court. The Court may wish to take into

consideration that both applicant and respondent in the case are in receipt of full free legal aid.

I will be present in Court on both days of the hearing to answer questions the Court may wish to put to me and to co-operate

in any way possible with the proceedings. In the meantime I wish to reiterate, as previously stated in the Family Court, that I

have no interest in being further involved in this case. My clear understanding of my position is that I am legally divorced from

J.K. Should the Court find to the contrary, I would request that the Court direct J.K. to immediately instigate divorce

proceedings so that my position can be legally established under Irish law.”

At the hearing before this Court there was some brief discussion between the members of the Court and the notice party who

appeared in person but nothing of substance was added to the position of the notice party as set out in her admirably clear letter.

The Law and Conclusions

It is clear beyond question that the decree of divorce between the respondent and the notice party pronounced by the Court of

Common Pleas of the State of Ohio in 1982 cannot be recognised in this jurisdiction. Neither the respondent nor the notice party was

domiciled, or indeed resident, in Ohio at the time of the inception of the divorce proceedings. The divorce was obtained through the

making of false and fraudulent claims by the respondent as to his residence. The Ohio Court was misled as to its jurisdiction. It was in

precisely the same position as was the English Court in the case of Gaffney v Gaffney. No argument for the validity of this divorce has

been made by the applicant. Nor has any argument been made by the applicant that an estoppel arises by reason of the record of the

Ohio Court.

As far as marital status is concerned, therefore, the respondent and the notice party are husband and wife and the applicant’s

purported marriage to the respondent is void. This situation gives rise to considerable injustice not only to the applicant but also to

the notice party who, as can be seen from her letter, has for the past twenty years believed herself to be divorced from her husband

and has conducted her life and that of her child accordingly.

The respondent has by his actions created this situation. He knowingly defrauded the Ohio Court. He subsequently discovered from

the English authorities that his Ohio divorce was not recognisable in that jurisdiction. Rather than, at the very least, taking legal

advice as to his position in this jurisdiction, he concealed the English correspondence from the applicant. He then committed bigamy

by entering into a purported marriage with the applicant. He was enabled to do this by untruthfully asserting to the marriage registrar

that he was a bachelor. Dicey and Morris (Conflicts of Law 13th edition volume 2 page 762), commenting on the fact that there is

very little English authority on a doctrine of preclusion or estoppel in matrimonial cases, add that “it should be pointed out, however,

that the English Courts have not yet been confronted with such starkly unmeritorious claims as the American and Canadian Courts

have sometimes been.”

It is difficult to imagine a more “starkly unmeritorious” claim than that of the respondent in the present proceedings. Not only does he

seek a declaration of nullity as a defence against any financial claim which the applicant might have against him, he also in his

counterclaim seeks financial relief against the applicant, including the transfer to him of her interest in the home which they have

shared for the past seventeen years. The conclusions reached by the learned Circuit Court judge in regard to the justice of the case

are therefore more than understandable. The question for this Court, however, must be whether the solution proposed by Judge

McCartan is, in law, permissible.

The applicant through her counsel argues that the decree of judicial separation and the ancillary orders which she seeks are orders in

personam against the respondent. She does not seek to alter the present marital status of any of the parties to this action and

therefore, it is argued, she does not seek to overturn the decision of this Court in Gaffney v Gaffney. What she submits is that the

respondent, because of his conduct, should be denied the specific defence which would normally flow from the actual marital status

of the parties.

As far as the decision in Gaffney’s case is concerned, the chief difficulty in the way of the applicant’s argument lies not so much in

the judgments of this Court as in that of Kenny J. in the High Court. At pages 141 to 142 of the Report the learned judge considered

the question of estoppel arising in particular circumstances for the purposes of the law of succession. He said:

“The findings that the divorce a vinculo was obtained by fraud and by duress and that the agreement of April 1964 was

procured by duress dispose of the defendant’s contentions but, as these findings may not find favour in a higher court, I think

that I should deal with the interesting 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 was invalid and that she should be

regarded as the spouse for the purposes of succession. There is no Irish or English authority on the matter but it has been

considered in the United States of America and in Canada.

If the matter be considered on principle, there are startling consequences if it be held that 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 was

invalid, and that she should not be regarded as the spouse for the purposes of succession. Bigamy is an extra territorial

defence – see section 57 of the Offences Against the Person Act 1861 as interpreted in Earl Russell’s Case. [1901] AC 446. If

the husband had been prosecuted in the Republic of Ireland for bigamy and the invalidity of the English divorce had been

established, the jury would have had to convict him because a belief on reasonable grounds (if he had it) that he had been

divorced, when in fact he had not, is not a defence to such a charge: R v Wheat [1921] 2 KB 119. The result then would be

that while the plaintiff would be prevented from proving the invalidity of the divorce, the husband would have been convicted

of bigamy. If there had been children of the second marriage and if the husband died intestate (as he did), the plaintiff could

not have disputed their legitimacy; but the children of the first marriage could have done so as the estoppel would bind the

plaintiff only, and could have excluded the children of the second marriage from any benefit by succession. Other remarkable

consequences of this estoppel applied to marriage are described by Mr Justice Megarry in ‘A Second Miscellany at Law’ at

pages 211 and 212. If the law is to avoid these ridiculous consequences, it seems to me that on principle the doctrine of

estoppel does not apply to the question of the existence of a valid marriage or the status of being married though it may

apply in relation to property rights between husband and wife.”

Kenny J’s approach to this form of estoppel was criticised at the time by the academic commentator Mr William Duncan in the Irish

Jurist [1974] 9 Ir. Jur( n.s.) 59. At page 61 of his article Mr Duncan writes:-

“In his judgment in the High Court Kenny J. dealt with this issue at much greater length. Indeed he would have regarded this

as the crucial issue had the English divorce not already been vitiated by duress. His opinion (one which he affirmed in C v C

(High Court July 1973 unreported)) was that a spouse is not estopped from denying the validity of her divorce even where the

denial is made to secure an advantage in respect of the estate of the other spouse.

In reaching this conclusion, he rejected a majority decision of the Supreme Court of Alberta in Re Plummer [1942] 1 DLR 34,

where it was held that a wife who had obtained a divorce in the State of Washington was estopped from denying its validity for

the purpose of taking a widow’s share in her husband’s estate. The decision in Re Plummer was based, in part, upon an uneasy

distinction between the effects in personam and the effects in rem of a foreign divorce. Estoppel could operate as regards the

former but not as regards the latter. Kenny J., rightly, it is submitted, rejected this distinction as being ‘without meaning’ and

as giving rise to a number of anomalies.

However, the rejection of this distinction does not dispose of all the arguments in favour of an estoppel operating in limited

circumstances. The doctrine of estoppel is based on the principle of justice that an individual may not deny a fact which he

has already asserted in order to gain an unfair advantage over another. It could be argued, therefore, that the doctrine

should be applied, not so much to the effects in personam of a foreign divorce, but in any case where a spouse has asserted,

and later denied, the validity of a divorce in order to obtain an unfair personal advantage. Moreover, the argument raised by

Kenny J. that, as a result of this doctrine, a person may find himself married for some purposes and unmarried for others is

not a good one. What the Court does when it applies the doctrine of estoppel to a foreign divorce is not to hold that the

foreign divorce had effected a change in the status of the parties, but to hold that the original assertion of its validity by a

spouse may be a sound reason for denying that spouse’s specific remedy. The issue of status is not affected – the divorce

cannot be recognised. But a particular remedy which would normally flow from the non-recognition of the divorce is denied.”

Professor William Binchy, in his book “Irish Conflicts of Law “takes a somewhat similar approach to that of Mr Duncan. In an analysis of

the judgments in Gaffney v Gaffney he refers to the question of estoppel by conduct, putting the question “if a spouse who has

participated actively in foreign divorce proceedings, by petitioning or by consenting to the granting of a decree, later seeks to

challenge the validity of the divorce, in what (if any) circumstances will he or she be estopped from doing so?” Professor Binchy

accepts that both Walsh J. in this Court and Kenny J. in the High Court rejected this form of estoppel in Gaffney’s case. Commenting

on the passage in Kenny J’s judgment already quoted above Professor Binchy writes:-

“One can legitimately doubt whether the consequences of giving at least some effect to the estoppel defence would be as

‘ridiculous’ as Kenny J states. There is, of course, a strong argument for people retaining a consistent status in public law – for

voting, income tax, citizenship and so on; but there is an equally strong argument that, where private rights are concerned, a

party should not be allowed to ‘approbate and reprobate’ – to assert the validity of the divorce in one context and its invalidity

in another. If a spouse has obtained a foreign divorce, and no question of duress arises, why should it be unjust or socially

dangerous for the Court to hold that he or she was estopped from later asserting maintenance or succession rights against his

or her former spouse?”

The course thus advocated by Mr Duncan and Professor Binchy has been followed in a number of cases by the Courts of the United

States and of Canada. In his argument, counsel for the applicant relied in particular on three cases – Krause v Krause 282 NY 355,

Mayer v Mayer 66 NC App. 552, and Downton v Royal Trust Company & Al [1972] 34 DLR (3d) 403.

In the first of these cases the defendant who, with his wife, was domiciled in New York went to a foreign State and procured a

divorce. His wife neither entered an appearance nor was personally served in that action and at all times remained a resident of New

York. Subsequently the defendant married the plaintiff and lived with her as his wife for six years. He then abandoned her. In her

action for a separation his defence that he lacked capacity to marry the plaintiff on account of the invalidity of his foreign divorce

was struck out. The Court held that the defendant might not be heard to assert in that action that the judgment of divorce which he

sought and obtained failed of its purpose and thereby did not give to the defendant that freedom to remarry which he appeared to

possess by virtue of that judgment . As a result the defendant was required to provide financial support for both his wife and for the

plaintiff in the action. At page 359 of the judgment of the Court of Appeal of New York Finch J. reviewed a number of cases in which

varying decisions in regard to such an estoppel had been made. He went on to say:

“We come, then, to a consideration of the principle applicable in the case at bar. We cannot lose sight of the fact that the

present defendant was himself the party who had obtained the decree of divorce which he now asserts to be invalid and

repudiates in order that he may now disown any legal obligation to support the plaintiff, whom he purported to marry. To

refuse to permit this defendant to escape his obligation to support the plaintiff does not mean that the courts of this State

recognise as valid a judgment of divorce which necessarily is assumed to be invalid in the case at bar, but only that it is not

open to the defendant in these proceedings to avoid the responsibility which he voluntarily incurred. It is conceded that the

estoppel which is invoked against the present defendant is not a true estoppel as that term is ordinarily understood, although

the effect is the same in the case at bar.

But it is urged that even though the prior authorities in this State do not compel a contrary result, a different conclusion

should be reached as a matter of principle. It is said that public policy requires that the interest of the State in the first

marriage be protected even that may also give the individual defendant an incidental advantage to which he is not entitled in

his private right. Thus the defendant seeks to avoid the obligation which he has purported to undertake to support his second

wife, upon the pretext that such is inconsistent with his obligations towards his first wife. Objection upon this score is fully met

by the fact that the needs of his first wife are to be taken into account in arriving at the ability of the defendant to support

the plaintiff in the case at bar. Defendant would altogether disallow any obligation towards this plaintiff because of his

obligation to his first wife. The results which we reach here is the only one which awards justice to this plaintiff, prevents her

from becoming a public charge if she should be impecunious and at the same time protects the first wife in adequate degree.

Thus there is complete observance of not only the interest of the State and the protection of the first marriage, but also of

the other interest of the State that marriage obligations shall not be likely undertaken and lightly discarded.”

In Mayer v Mayer (66 N.C.A. pp. 522) the Court of Appeals of North Carolina recognised the doctrine of equitable estoppel to the

extent that the husband, who encouraged the wife to obtain a divorce from her prior spouse, was estopped from questioning the

validity of the prior divorce decree. The Court held that, although the wife’s Dominican divorce decree was invalid, the husband was

estopped from asserting as a defence the invalidity of the wife’s prior divorce, and the wife was entitled to alimony pendente lite and

reasonable attornies’ fees.

The judgment of the Court was delivered by Judge Charles L. Becton. Under the heading Estoppel the Court stated:-

“The question, squarely presented by these contentions, is whether a husband, who actively participates in his wife’s

procurement of an invalid divorce from her prior husband is estopped from denying the validity of that divorce. After a careful

balancing of legal and policy considerations, we answer that question ‘yes’…..Under quasi estoppel doctrine, one is not

permitted to injure another by taking a position inconsistent with prior conduct, regardless of whether the person had actually

relied upon that conduct…….

The development of quasi-estoppel doctrine is reflected in the Restatement (Second) Conflict of Laws paragraph 74 (1971),

which states that:

‘A person may be precluded from attacking the validity of a foreign divorce if, under the circumstances, it will be

inequitable for him to do so.’”

The case of Downton v Royal Trust Company & Al. 34D. L.R. (3d) 403 was decided by the Supreme Court of Canada in 1972. In that

case the appellant married the deceased in 1948. The parties separated in 1960 and at that time entered into a separation

agreement. In 1965 the deceased went to Nevada to obtain a divorce. The terms of the separation agreement were incorporated in

the divorce decree and the appellant by power of attorney appeared in the divorce action. After the divorce was granted the

deceased remarried. Upon the death of the deceased the appellant sought to share in his estate pursuant to the provisions of the

Newfoundland Family Relief Act 1962. On appeal the Supreme Court of Canada held that although the Nevada Divorce Decree would

not be recognised in Newfoundland and as a result the appellant remained the lawful widow of the deceased, the controlling issue was

whether she was precluded from asserting that status. The Court held that she was so precluded.

The judgment of the Court was delivered by Laskin J. who in his judgment carried out an extensive survey of what were described as

“divided decisions” in that branch of the law. At page 7 of the report Laskin summarised his survey and his conclusions as follows:

“My canvass of typical cases which have reached Canadian courts indicates that the only claim to consistency that they

exhibit is the application of a preclusion doctrine against a spouse who, having obtained a decree of divorce or nullity from a

foreign court incompetent to give it, seeks thereafter to assert that incompetence in order to gain a pecuniary advantage

against his or her spouse or the estate of the spouse. The doctrine has an ethical basis: a refusal to permit a person to insist,

to his or her pecuniary advantage, on a relationship which that person has previously deliberately sought to terminate. The

ethical basis is lost, however, where there has been both invocation and submission to the foreign jurisdiction by the

respective spouses; and if there is to be a modification or rejection of the preclusion doctrine in respect of one or both of the

spouses, other considerations must be brought into account; there may be, for example, an alleviating explanation for the

submission to the jurisdiction of an incompetent foreign court. So too, where third parties are involved in a case where a

spouse who has obtained an invalid foreign divorce or decree of nullity seeks to rely on its invalidity.

Any ethical factors underlying the preclusion doctrine are submerged in overriding considerations when an invalid foreign

decree is pressed in a strictly matrimonial cause in which divorce or nullity is sought. Marital status per se cannot be altered

or perpetuated by a preclusion doctrine, and hence, as in Schwebel v Schwebel [1970] 10 DLR (3d) 742, [1970] 2 O.R. 354, 2

R.F.L. 45 (Ont.), a spouse should not be denied the right to seek a divorce before a competent court merely because that

spouse earlier invoked the jurisdiction of an incompetent foreign court.

This result appears to me to be consistent with a public policy which today more than before recognises that parties whose

marriage has failed should be allowed to dissolve it. I see no inconsistency between this position and the application of a

preclusion doctrine against a spouse who has ignored the jurisdictional requirements for a valid dissolution and who would

nonetheless insist to his or her own pecuniary advantage that the law be applied strictly in his or her favour in disregard of an

attempted dissolution which is invalid.”

In the circumstances of the present case there is no doubt that the course advocated by Mr Durcan and, indeed, by the learned

Circuit Court judge, has many attractions. Not least of these is that it would provide a remedy for the grievous wrong which the

applicant has suffered at the hands of the respondent. It is not, however, without its difficulties.

In oral argument on behalf of the applicant it was strongly contended that orders in family law cases generally were made only in

personam; that they were, as it were, shut off from the world at large by the operation of the in camera rule as expressed both in

the family law statutes and in the relevant Court rules. This argument, if it is to have any reality, has to be seen in the context of the

current extremely strict interpretation of the in camera rule – an interpretation which has yet to be considered by this Court. One

cannot but be aware, also, that there are at present proposals for imminent legislative change in regard to certain of the more

restrictive features of this rule. For example, in the Civil Registration Act, 2004, which was enacted on 27th February 2004, Part 7

(section 59) of the Act provides for a full system of registration of decrees of divorce and decrees of nullity. In argument, counsel for

the applicant appeared to accept that a decision affecting matrimonial status – for example a decree of divorce, must be addressed

to the public at large and is a decision in rem. This is clearly correct.

A decree of judicial separation does not alter the matrimonial status of the parties, and it is true that it may be rescinded consent of

the parties pursuant to section 8 of the Act of 1989. However, many of the financial and property provisions ancillary to a decree

require interaction either with third parties such as pension trustees or with public bodies such as the Land Registry or the Revenue

Commissioners. These public interest aspects of the situation have been drawn to the attention of the Court by counsel for the

Attorney General. It is difficult to accept that such a decree is purely a private law matter.

In addition, the operation of a preclusion doctrine in this type of case, while endeavouring to do justice to the second partner, may

result in injustice to the legal wife. The learned Circuit judge in his judgment in the present case makes it clear that in his view on the

facts no injustice will be done to the notice party by the operation of an estoppel against the respondent. This may be so, and no

doubt it can also be argued that such an estoppel would operate only where the particular circumstances of the case would render it

equitable. Nevertheless if this Court is to accept what is in effect a new doctrine of preclusion, it is hardly sufficient to base it solely

on the singular facts of one individual case.

As has been pointed out to the Court by counsel, due to the unavailability of divorce in this jurisdiction until recent times, a

considerable number of persons are involved in situations where a second purported marriage has followed on an invalid prior foreign

divorce. The applicant is by no means alone in her unenviable position. Thus the Court must consider in general terms the potential

effect of the introduction of an estoppel of the type sought by the applicant, which would in future be open to application by Family

Law Courts whenever the Court considered it equitable in the circumstances of the case.

The general approach of the United States and Canadian Courts has not been immune to criticism, particularly on the grounds of its

uncertainty and inconsistency. Becton J. himself, in the introduction to his judgment in Mayer v Mayer notes that:-

“The concept of foreign country migratory divorces for American domiciliaries – with its jurisdictional and public policy defects;

its alleged ‘defence’ of estoppel; and with one exception piled upon another – has become so confusing to the lay public and

the practising Bar that very few people adequately understand the underlying ramifications and liabilities involved in such

divorces.”

In the judgment of the Canadian Supreme Court in Downton, Laskin J. , in the passage quoted above, speaks of “the only claim to

consistency” being a narrow application of the preclusion doctrine, and goes on to exclude the operation of that doctrine in what are

described as “strictly matrimonial causes”, in which divorce or nullity is sought.

Dicey and Morris (Conflict of Laws 13th ed, volume 2 page 761):-

“A difficult question is whether a spouse who has obtained an invalid foreign divorce, or remarried on the strength of one

obtained by the other spouse, is ‘estopped’ or precluded from denying its validity in subsequent proceedings in England.

Suppose, for example, that a husband and wife are domiciled and habitually resident in England, and that the wife obtains an

invalid foreign divorce, and then claims a widow’s share on the death of her husband intestate. Or suppose that the husband

obtains an invalid foreign divorce, remarries, and then seeks to escape from his financial obligations to his second wife by

alleging that the divorce, and therefore the remarriage, is invalid. It would seem inequitable to allow such unmeritorious claims

to succeed. But the difficulty is, as American and Canadian Courts have discovered, that if fixed rules of law are departed

from in the interests of justice in the individual case, all certainty in questions of marital status is lost.”

The learned authors go on to point out that there is very little English authority on this question, and all of it is hostile to the

adoption of a doctrine of preclusion or estoppel.

As has already being noted, Kenny J. in Gaffney’s case specifically rejected the approach of the Supreme Court of Alberta in Re

Plummer.

In my view there is considerable difficulty in the distinction made in Downton between “strictly matrimonial causes” and other cases

in which the preclusion doctrine applies. In the present case, for example, the applicant argues that the preclusion doctrine should

apply in her judicial separation proceedings. Yet the respondent in the same proceedings by way of counterclaim seeks a decree of

nullity which is, presumably, a “strictly matrimonial cause” . Are the present proceedings as a whole, therefore, a “strictly

matrimonial cause” or not?

The notice party, whatever be the outcome of the applicant’s proceedings, clearly cannot rely as she has hitherto done on the

validity of the Ohio divorce. As can be seen from her letter she wishes to obtain a divorce in this jurisdiction from the respondent (for

which she appears to have the clearest grounds). Her divorce proceedings would also be a “strictly matrimonial cause”,

Thus within one set of circumstances two forms of relief could be sought which are essentially based on the invalidity of the foreign

divorce, while in the applicant’s proceedings no reliance could be placed on the invalidity of the same foreign divorce if a doctrine of

estoppel or preclusion is accepted. The application of this principle would, it seems to me, be likely to cause confusion and

inconsistency in future cases where the factual circumstances might not be so clear as in the present case.

Both counsel for the respondent and counsel for the Attorney General laid stress on the importance of certainty in regard to the

marital status of individuals and of couples. Rules regarding the recognition of foreign divorces, and hence the resulting marital status

of the parties to such divorces, should be readily ascertainable and clear. To permit the operation of an estoppel as sought by the

applicant would, they argued, lead to uncertainty as to the marital status of those who had obtained foreign divorces.

This argument would, in my view, carry more weight if there was in reality any great degree of clarity and certainty in the current law

in this field. As it is, the marital status of certain persons is governed by the Domicile and Recognition of Foreign Divorces Act 1986;

that of others by the decision of this Court in W v W [1993] 2 IR 476. Our own legislation bases jurisdiction in judicial separation,

divorce and nullity on “ordinary residence” for a period of one year in addition to jurisdiction based on domicile. (See Judicial

Separation and Family Law Reform Act 1989 section 31(4), Family Law (Divorce) Act 1996 section 39, Family Law Act 1995 section

39). The marital status of some may, or perhaps may not, be affected by the judgments of the High Court in G.McG v D.W. [2000] 1

IR 96 and D.T. v E.L. [2002] 2 ILRM 152. Those who have obtained divorces which were initiated in Member States of the European

Union since 1st March 2001 are governed by an entirely different regime, that of Council Regulation (EC 1347/2000) of 29th May 2000

on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for

Children of Both Spouses, generally known as Brussels II. This regime of recognition bases jurisdiction in the main on habitual

residence, although a subsidiary alternative role is played by domicile and/or nationality. Presumably this recognition regime will later

this year be extended to the ten new Member States. Brussels II does not, however, apply to Denmark. In certain cases the

Regulation may apply to divorces obtained after 1st March 2001 where proceedings were instituted before that date, but this is quite

uncertain.

To all this must be added the inherent complexity of the law of domicile, which over the years has led to much litigation. Still further

uncertainty may be added by the provisions of section 29 of the Family Law Act 1995 which appears to mean that a declaration of

marital status made by the Court will affect the parties in all cases but will not affect the State unless the Attorney General has been

a party to the action. Bearing all this in mind it is not really surprising that a recent conference a lecture by Mr Alan Shatter, author

of “Family Law in the Republic of Ireland”, on the recognition of foreign divorces was entitled “The Application of Chaos Theory”.

In these circumstances I would find it difficult to be swayed by any argument in the present proceedings based on the desirability of

certainty regarding matrimonial status. Certainty may well be desirable, bit it does not at present exist.

As I have acknowledged earlier in this judgment, a considerable number of persons in this country are involved in situations where a

second marriage has followed on a prior foreign divorce which is possibly invalid. Such persons may well find themselves in a position

comparable to that of the applicant. It is not satisfactory for the Court to deal with these complex and anomalous situations on a

case by case basis, whether through the principles of estoppel or otherwise. It would be preferable that legislation be enacted both

to create a clear and consistent code of recognition and to provide a remedy for persons who through no fault of their own have

become parties to a marriage which later proves to be invalid.

Both counsel for the respondent and counsel for the Attorney General in their submissions point in particular to the actual nature of

the applicant’s judicial separation proceedings, which are statutory proceedings brought under the Judicial Separation and Family

Reform Act 1989 and the Family Law Act 1995. This, it seems to me, is the kernel of the matter. The applicant in reality seeks

through the means of estoppel to obtain certain orders in regard to maintenance and, more importantly, to property. These orders,

however, can only be obtained as a result of, and ancillary to, a decree of judicial separation. In order to grant such a decree the

Court must itself hold (a) that the parties were legally married and (b) that the marriage has broken down on the grounds set out in

section 2 of the Judicial Separation and Family Law Reform Act 1989.

In a powerful dissent in the case of Krause v Krause, Loughran J. begins his judgment by saying:

“The complaint states in orthodox form a cause of action by a wife against her husband for a separation. ‘In every action for

separation the primary fact to be proved is an existing marriage between the parties.’ (Fischer v Fischer, 254 N.Y. 463, 466).”

He reviews a number of cases where a claim based on estoppel was rejected. At page 364 of the report Loughran J. concludes:

“The present plaintiff does not sue for support merely. A wife has no such remedy in this State. (Johnson v Johnson 205 NY

561). This action is a purely statutory action for a separation…Any suggestion that the Court should in some fashion take

account of the needs of the defendant’s first wife (who is not a party) cannot alter the case. This action is a matrimonial

action. (Civ. Prac. Act, art. 70)….My conclusion is that the defence here challenged is valid. It may be that the law will be

bettered by the contrary ruling that the defendant must stand by a relationship with the plaintiff which she is free (and always

was free) to nullify….But it is not the function of courts to make such supposed improvements. Their general duty is not to

change but to work out the principles already sanctioned by the practice of the past. No one supposes that a judge is at

liberty to decide with sole reference even to his strongest convictions of policy and right. His duty in general is to develop the

principles which he finds, with such consistency as he may be able to attain.”

The present proceedings are equally “a purely statutory action for separation”. In the applicant’s own Family Law Civil Bill the first

paragraph of the indorsement of claim states:

“The applicant and the respondent were lawfully married to each other on the 25th day of March 1983 in the Registry Office,

Molesworth Street, in the City of Dublin.”

The normal proof of such a statement would be the production of the marriage certificate. The respondent’s defence claiming the

invalidity of that marriage has already been put before the Court. The learned Circuit Court judge in the Case Stated and in his

judgment has already (correctly) held that the Ohio divorce cannot be recognised as valid and, in effect, that the marriage between

the applicant and the respondent is void. It seems to me that for the Court then to proceed to make orders which can only be based

on an actual marriage is a step too far.

With considerable reluctance, therefore, and with even more regret, I would hold that the answer to the question set by the learned

Circuit Court judge is “No”.

In her submissions to this Court senior counsel for the Attorney General has made very full suggestions as to an alternative remedy

for the applicant.which, she suggests, would meet the justice of the case. In this case the applicant has indeed suffered a wrong at

the hands of the respondent and I am mindful of the principle that where there is a wrong there should be a remedy. It may well be

that the course suggested by Ms O’Toole could provide a remedy and, if so, the measure of damages to be granted to the applicant

could usefully be, as was suggested by a member of this Court during the hearing, the financial and property reliefs which she could

otherwise have obtained in her judicial separation proceedings. However, the matter before this Court is the Case Stated by the

learned Circuit Court judge, and it does not seem to me to be open to this Court to reach any opinion or make any finding in regard to

the availability of the alternative remedies suggested on behalf of the Attorney General.

As far as the notice party is concerned, she now finds that the Ohio divorce is invalid and that she remains the wife of the

respondent, a situation which she emphatically does not desire. It is, of course, now open either to her or to the respondent to

institute divorce proceedings in this jurisdiction. Understandably, since the respondent is legally aided and she is not, she asks this

Court to “direct” the respondent to instigate divorce proceedings. It is not, unfortunately, open to the Court to make such an order.

I would therefore conclude that the question put by the learned Circuit Court judge to this Court must be answered in the negative.