Supreme Court holds estoppel cannot validate a marriage procured by fraud on foreign jurisdiction grounds.

THE SUPREME COURT

Record No. 100/2003

Denham J.

Murray J.

McGuinness J.

Fennelly J.

McCracken J.

BETWEEN

C. K.

Applicant

and

J. K.

Respondent

and

F McG

Notice Party

JUDGMENT delivered on the 31st day of March, 2004 by FENNELLY J.

The Circuit Court has stated a case to this court on a question of great potential importance in certain family law cases. Where a

person obtains a divorce by deceiving a foreign court as to its jurisdiction, and then enters into an apparently valid marriage in Ireland

by further deceiving his apparent new Irish wife, is the latter precluded by a superior principle of law from arguing, in her subsequent

claim for judicial separation, that he be estopped from relying on his own misconduct to impugn the validity of his marriage to her?

The Court is invited to reconsider its decision of this court in Gaffney v Gaffney [1975] I.R. 133.

The Applicant, on 21st September 2001, issued a Family Civil Bill claiming judicial separation and ancillary reliefs pursuant to the

Judicial Separation and Family Law Reform Act, 1989. The Civil Bill alleged that the Applicant and the Respondent were lawfully married

at the Registry Office in Dublin on 25th March 1983; that there were two children of the marriage and that the family home was held

in the joint names of the parties. It alleged that the marriage had broken down. Apart from a decree of judicial separation, it claims an

order relating to custody of children and other ancillary orders including orders in relation to the family home.

The defence denies that the parties were ever lawfully married. In a counterclaim, the Respondent pleads that he had already been

lawfully married, in 1968, to another person (the Notice Party). It then states that the Respondent, in 1981, applied to a Court of

Ohio, in the United States of America, which, in 1982, granted a decree of divorce in respect of his marriage to the Notice Party. It

pleads that, at the time of those divorce proceedings, both the Respondent and the Notice Party were domiciled in Ireland. It is also

pleaded that, in 1983, the Respondent applied for recognition of his Ohio divorce from the General Register Office in England, but that

he was refused. It describes the apparent marriage to the Applicant as a “purported ceremony of marriage.” It says that the

“alleged divorce” is not entitled to recognition within this jurisdiction. The counterclaim seeks, inter alia, a declaration of nullity of the

“purported ceremony of marriage” to the Applicant.

The proceedings came before His Honour Judge McCartan sitting in the Dublin Circuit Court. A preliminary issue was raised concerning

the validity of the Ohio divorce, the validity of the subsequent Irish marriage and the applicability of the principle of estoppel. Having

heard the submissions of counsel, the learned judge delivered a written judgment.

The facts, as related in the Case Stated and the findings of the learned Circuit Court judge are fully set out in the judgments of

Denham and McGuinness JJ and I do not need to repeat them.

The learned judge went on to state that the law was “so firmly stated in Gaffney v Gaffney” that he did not “feel entitled to rule

outside the terms of that decision.” He considered that the concept of estoppel was “a judge-made and developed principle,” well

suited to offer a solution to the case, but it was preferable to consult the Supreme Court to discover, having regard to the passage

of time, the scope of the doctrine of estoppel could be expanded beyond the parameters laid down in 1975. His own view on the

matter was stated as follows:

“… I believe that justice between the parties can only be achieved by prohibiting or estopping the respondent from attacking

the validity of the divorce and by definition the validity of his marriage to the applicant. 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.”

The following is the question posed for the opinion of the 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.”

This Court has received written submissions from counsel on behalf of the Applicant, the Respondent and the Attorney General. The

Notice Party was informed of the hearing and of her right to make submissions. She declined to do so, explaining in a letter more fully

dealt with by McGuinness J, that she was not legally aided.

The Applicant’ submissions

Mr Gerard Durcan, Senior Counsel, for the Applicant drew attention to the view of the learned Circuit Court judge that justice could

only be achieved by estopping the Respondent from attacking the validity of the marriage and says, if this cannot be done, it follows

that injustice will be visited in the Applicant. “The representation relied upon as an estoppel,” according to Spencer Bower and Turner

(Estoppel, Third Edition page 16 and 17), “is, in itself no direct or affirmative evidence of any title or right whatsoever; it can only be

used to prevent the opposite party from denying that title or right whatsoever; it can only be used to prevent the opposite party

from denying that title or right.” The case for the Applicant is not that the estoppel confers on her the status of spouse but rather

that the Respondent is precluded in these proceedings from saying that she does not enjoy that status. It is a personal estoppel only.

The Applicant acted to her detriment on foot of the Respondent’s misrepresentation, by entering into a ceremony of marriage and

living with the Respondent as his wife, including bringing up the two children of the apparent marriage.

It is claimed that Gaffney v Gaffney was decided, by this court, on the basis, not of estoppel by representation, which it did not

address, but of estoppel by record: since the English Court, in that case, had no jurisdiction over the wife, who was not domiciled

there, it did not have jurisdiction to grant the order of divorce. Walsh J also stated that estoppel cannot change marital status.

However, the Applicant acknowledged that Kenny J, in the High Court, held that a spouse was not precluded from denying the validity

of a divorce obtained for the purpose of obtaining pecuniary advantage, and that would be inequitable in the circumstances. It was

submitted that this was a mistaken view. It was not correct to say that a spouse would be married for some purposes but not for

others. Status would not be affected. The divorce would not be recognised, but a particular remedy, which would normally flow from

non-recognition, would be denied.

The Applicant also emphasises the great social and legal developments that have taken place since Gaffney v Gaffney was decided.

At that time, the only matrimonial remedy was divorce a mensa et thoro. Many legislative changes have since occurred, most notably

the introduction of civil divorce. Moreover, rules regarding domicile have changed: the rule of the dependant domicile of the wife has

been judicially abolished; the Domicile and Recognition of Foreign Divorces Act, 1986 provided, prospectively, for recognition of foreign

divorces based on the domicile of one of the parties. Social change includes the greater incidence of marriage breakdown and

accompanying resort to foreign divorce jurisdictions.

The Applicant contends, on the authority of the decision of this Court in G. McD v D. W. (No. 2) [2000 4 I.R. 1], that, for the

purposes of section 29 of the Act of 1986, there has been a variation of the common-law rule that decisions affecting marital status

may not always be in rem. Since such declarations bind the State only if the Attorney General is a party to the proceedings, it was

submitted that such declarations may be binding on some persons and not others. Mr Durcan freely acknowledged the implications of

a decree of judicial separation being a judgment in rem. If it is, it binds the whole world and personal estoppel cannot arise. He

argued for a distinction between the English and Irish procedure. In England, judicial separation proceedings are commenced by

petition and are heard in open court. Here, matrimonial proceedings, except for nullity, are commenced by Special Summons or, in the

Circuit Court by Civil Bill and are heard in camera. He cited the Judgment of Butler Sloss, L.J. in Clibbery v Allan and another [2002

[Family] 261 to the effect that the “principle of open justice applies to all courts and in principle the family courts are not excluded

from it…”

The Applicant submitted that the approach in the United States has, for many years, been different from ours. The Restatement of

Law by the American Law Institute recognises that a person may be precluded from attacking the validity of a foreign divorce if,

under the circumstances it would be inequitable for him to do so. Though recognising the existence of varying application of the rule

from state to state, the Applicant has referred to a number of relevant authorities. In one of these, Mayer v Mayer 66 N.C. App., the

Court of Appeal of North Carolina held: “There is a difference…between declaring a marriage valid and preventing one from asserting

its validity.”

In Downton v Royal Trust Company et al. [34 D.L.R. (3d) 403, Laskin J, in the Canadian Supreme Court, saw no rooted objection to

“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 own favour in

disregard of an attempted dissolution which is invalid.”

The Respondent’s Submissions

Mr Gerard Hogan, Senior Counsel, referred to the recital by the decree of the Ohio court that the Respondent had been a bona fide

resident of the State of Ohio for at least six months. He points out that, not only were the residency details so cited incorrect, but

that, even on the assumption that they were correct, Irish law would not have granted recognition to such a divorce, where neither

party was domiciled in that State. It is correctly submitted that it is not disputed that the Ohio divorce is not entitled to be

recognised in Irish law and that, consequently, the marriage ceremony of 1983 was also invalid.

The Respondent submits that Gaffney v Gaffney leaves no room for the application of a doctrine of estoppel in circumstances such as

the present. The Court there expressly envisaged this type of case and laid down a very broad principle. This Court has expressly

followed and applied that decision in the recent case of R.B. v A.S. [2002] I.R. 428. The Respondents quote in extenso the judgments

of Kenny J in the high Court and of Walsh JJ in the Supreme Court in that case. I propose to consider these judgments in some detail.

It is sufficient to state that they proceed on the basis that resort to estoppel would conflict with the unshakable and fundamental

principle that the validity of marriage is a matter of status, that pronouncements respecting the validity of marriage are decisions in

rem and that they cannot be displaced by the doctrine of estoppel no matter what the circumstances.

The Respondent submits, accordingly, that, unless Gaffney v Gaffney can be overruled, he cannot be prevented by estoppel from

setting up the invalidity of the Ohio divorce. The Supreme Court will not, however, decline to follow its own decisions merely because

a contrary view is also possible (Mogul of Ireland v Tipperary (NR) County Council [1976] I.R. 260). At the least, the later court must

be clearly of the opinion that the earlier opinion was wrong.

The Respondent submits that departure from the principle laid down in Gaffney v Gaffney could be justified only if it produced manifest

injustices that were not foreseeable at the time that decision was pronounced. The social and legal developments since 1975 do not

justify any departure from Gaffney v Gaffney. No key arguments were overlooked in Gaffney v Gaffney. The Respondent relies both on

the fundamental principle that marriage is a matter of status, which cannot be decided differently depending on the circumstances

and on the anomalies that, it is claimed, would result from relaxation of the Gaffney v Gaffney rule.

Mr Hogan urged the Court not to allow itself to be persuaded by the admittedly unfortunate position of the Applicant to depart from

fundamental legal rules.

The Attorney’s General Submissions

Ms Mary O’Toole, Senior Counsel, on behalf of the Attorney General supports the Respondent’s submissions. The Respondent

committed a fraud on the Ohio court, but even without that the divorce could not be recognised in Irish law, which applies a domicile

rather than a residency test.

The Attorney General suggests that, according to the judgment of Laskin J in the Canadian decision in Downton, whether or not

estoppel will apply will depend on the circumstances. There is uncertainty and variation in the case law. Dicey and Morris (Conflicts of

Law, 13th ed., vol 2 at page 762 paragraphs 18-131 and 132.) stated that:

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

The Attorney General also relied on certain well-known English authorities. In Bonaparte v Bonaparte (892) p. 402, three parties,

husband, wife and co-respondent, all English domiciliaries, colluded to deceive a Scottish into granting a divorce decree on the basis

of false evidence of Scottish domicile. When the co-respondent sought a declaration of invalidity of his subsequent marriage to the

Respondent, it was held that there were good reasons for regarding marriage in a different light from other contracts. The co-

respondent was not precluded form challenging the validity of the Scottish divorce and subsequent marriage. The Attorney General

also referred to the English Court of Appeal decision in Travers v Holley (1953) P. 246. A husband was held, by the majority of the

Court to have established a domicile of choice in New South Wales, where his wife obtained a divorce from him. On this basis, the

issue of estoppel did not arise. Jenkins L. J., however, dissented. He thought that the New South Wales domicile had not been

established. In addition the husband was not precluded from challenging the validity of a New South Wales divorce by reason of

allowing the decree to be granted by default and remarrying in reliance on it.

Counsel for the Attorney General submits that, in the light of Article 41 of the Constitution, marital status is a constitutional status.

The dictum of Walsh J in Gaffney v Gaffney to the effect that marital status “could not, by any rule of evidence be left in doubt, nor

could a court countenance a doctrine of estoppel…” is a correct and definitive statement of the law. Any departure would lead to a

state of great uncertainty. The decision of the Supreme Court in F v F [1995] I.R. 354 establishes that the decree of judicial

separation, like its predecessor, a decree of divorce a mensa et thoro, is based on the parties being lawfully married to each other; it

does not alter the marital status of the parties, but is based on that status. A decree of judicial separation is, in essence, a judgment

in rem. A decree has statutory and fiscal consequences in respect, for example, of the income-tax and capital-gains tax liabilities of

the parties. Some of these tax provisions would enure to the benefit of the Respondent, who was responsible for bringing about the

entire situation. The State would be bound, though not a party. The judicial separation decree would simply have to be produced to

the relevant state authority.

The Attorney General draws attention to section 29 of the Family Law Act, 1995. That section permits a spouse or “any other person

who, in the opinion of the court, has a sufficient interest in the matter …” to apply for “a declaration that [a] marriage” either “was

at its inception a valid marriage” or that it “subsisted on a date specified...” The section also provides for declarations either in

respect of the recognition or non-recognition of the validity of a divorce granted in any other country. The Attorney General raises

two questions: firstly, whether the Respondent would be entitled to a declaration that the Ohio divorce is not entitled to recognition

in the State; secondly, whether the Notice Party would be entitled to a declaration of the validity of her marriage to the Respondent.

It is suggested that each of these questions should be answered in the affirmative. Consequently, on the Applicant’s submission, the

court could make an order for judicial separation and for the invalidity of the Respondent’s Ohio divorce in the same action. In the

result, there would be, to all intents and purposes two constitutional families. Moreover, there would be no way of distinguishing the

position of the Applicant from that of any other spouse holding a decree of judicial separation.

Discussion and Analysis

In the clearly stated opinion of the learned circuit court judge, justice can only be done between the parties by estopping the

Respondent from attacking his Ohio divorce and the validity of his Irish marriage to the Applicant. The Attorney General submits that

he is mistaken in ignoring alternatives civil remedies in contract and tort. In my view, however, it would not be right for this court to

pronounce on those possible alternatives in this case. The Case Stated raises a specific question. The Applicant may well pursue

other remedies, but they would have to take their normal course. Such matters would have to be litigated at first instance before

they could be considered on appeal.

It is not contested on behalf of the Respondent or the Attorney General, nor could it be, that, in the event of her being denied the

remedy of judicial separation, the Applicant will suffer a serious injustice. She entered, in good faith, into an apparently valid marriage

with the Respondent. She had, at the time of the issue of the Civil Bill, lived with him, as his wife, for some seventeen years, founded

a family and shared a family home. She was misled, by the most gross deception, into believing that she was validly married.

It is common case, however, that the Ohio divorce was not capable of recognition in Irish law. Neither party was domiciled in that

jurisdiction at the time of the decree. Indeed, though it is not a matter for this court, it seems that the decree was not valid

according to the law of the State of Ohio, since the Respondent falsely informed that court that he had been resident there for a

period sufficient to enable that court to exercise jurisdiction.

Irish law accords recognition to a foreign divorce decree only in circumstances where at least one of the parties is domiciled in the

jurisdiction of the court granting the decree. The matter is now very substantially regulated by statute. Section 5 of the Domicile and

Recognition of Foreign Divorces Act, 1986 enacts a “rule that a divorce shall be recognised if granted in the country where either

spouse is domiciled.” The section, however, applies only from the commencement of that Act (see section 5(5)). From 1st March

2001, by virtue of Council Regulation (EC) No 1347/2000 of 29 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 (O.J. L 160 30th June 2000),

very substantial change has been made with regard to the recognition of divorce within the European Union. None of these changes

has, either temporally or substantively any effect on the recognition of the Ohio divorce, which fell outside the common-law rule,

based on domicile. No issue at all arises in the present case concerning the existing rules regarding recognition of foreign divorces.

Since the Ohio divorce cannot be recognised in Irish law, it follows that the marriage of the Applicant to the Respondent is invalid.

It is for that reason that the Applicant has raised the issue of estoppel and the learned Circuit Court judge has posed the question in

the Case Stated. The Applicant accepts that the decision of this court in Gaffney v Gaffney would preclude an affirmative answer

being given to that question.

The facts of Gaffney v Gaffney were, in one sense, the converse of those in the present case. The petitioner for divorce was the

oppressed party. Kenny J summarised the facts directly related to the obtaining of the divorce as follows:

“The husband said to the plaintiff on a number of occasions that he wanted to get a divorce from her. She did not want this.

Nevertheless, the husband in 1957 instructed a firm of solicitors in Manchester to prepare a petition by the plaintiff seeking a

divorce a vinculo from him. The plaintiff never gave instructions to this firm that they were to act for her or that they were

to apply for a divorce in her name. The solicitors prepared a petition in which the plaintiff was named as petitioner and in

which it was stated that the husband resided at No. 22 Edward Street, Blackburn, England, and that the plaintiff and he were

domiciled in England. The husband knew that both these statements were false. The husband never resided at No. 22 Edward

Street, Blackburn; at all times the plaintiff and he were domiciled in the Republic of Ireland. The petition went on to state that

the husband had deserted the plaintiff for three years and a divorce a vinculo was sought on this ground. The engrossment of

the petition and a verifying affidavit by the plaintiff were sent to the husband by the solicitors, and the husband brought them

to the plaintiff at Fairyhill and threatened her with physical violence if she did not swear the affidavit. The plaintiff then went

to a commissioner for oaths in Dublin and swore it.”

Although the plaintiff acted as petitioner, Kenny J had no doubt that she did so under the actual threat of physical violence from her

husband. On these facts, it would, on any view, have been unjust to prevent her from denying the validity of the divorce. Kenny J

found that the divorce had been obtained as a result of fraud and duress. He considered that finding sufficient to dispose of the

defendant’s reliance on the English divorce. Insofar as he proceeded to consider the issue of estoppel, it seems that that part of the

judgment is probably obiter. Kenny J outlined some anomalies that he believed could or would flow from application of the principle of

estoppel. He though that , if the law was “to avoid these ridiculous consequences, ……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.” He went on to refer to the fact that Canadian courts appeared to have recognised the possible

application of the doctrine of estoppel to a spouse who had invalidly invoked the jurisdiction of a foreign divorce court and to cite a

number of criticisms of this view.

The defendant appealed to the Supreme Court. It has been said that the appeal was based on a submission that the decision of the

English divorce court was a matter of record and that the principle relied upon was estoppel by record. However, the report of the

case also shows that the appellant argued that the plaintiff was not entitled to “approbate and reprobate” in respect of the divorce

and that she had obtained a benefit under it and more particularly under a subsequent agreement with her husband. I am satisfied

that this raised, in substance, the issue of estoppel by representation.

The Supreme Court was unanimous in dismissing the appeal. Walsh J, with whom O’Higgins and Parke J agreed, restated, at page 150,

the basic rule that “the Courts here do not recognise decrees of dissolution of marriage pronounced by foreign courts unless the

parties were domiciled within the jurisdiction of the foreign court in question.” This has, of course, been modified both judicially and

by statute to the extent of opening recognition to cases where one spouse is so domiciled. (W v W [1993] 2 I.R. 476). Walsh J

recited the appellant’s estoppel argument as follows: “By reason of the fact that she was the petitioner and that she swore in the

petition that her husband's domicile was in England, it is claimed by the defendant that the plaintiff is now estopped from setting up

the contrary.”

While Kenny J had answered the contention that a spouse should be estopped from denying the validity of a demonstrably invalid

foreign divorce, which he had contrived, by envisaging various anomalies and absurdities which it would produce, Walsh J approached

the issue as raising a matter of fundamental principle. He stated, 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

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 would 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. In law it would have been quite open to the husband

to have denied at any time after his marriage to the defendant that he was in law her husband. If during the currency of that

marriage the plaintiff had claimed that she was his wife, she might have been met with the answer which is being offered on

behalf of the defendant in this case - that the plaintiff was estopped from doing so because she had submitted to a jurisdiction

which purported to change that status. Consent cannot confer jurisdiction to dissolve a marriage where that jurisdiction does

not already exist. The evidence which the plaintiff sought to offer in the present case was directed towards showing that the

court in question did not have jurisdiction. In my view, the learned trial judge was quite correct in admitting that evidence.”

The judgments of Henchy and Griffin JJ concentrate on the issue of estoppel by record. However, each of them rejected the

argument that the plaintiff should not be allowed to give evidence to show that the English court lacked jurisdiction to grant the

decree of divorce. Henchy J stated, at page 154:

“I fail to see why, although the decree seems good on its face, evidence should not be received to show that its facade

conceals a lack of jurisdiction no less detrimental to its validity than if it had been written.”

Mr William Duncan, in an article to which the court has been referred (The Irish Jurist, 1974, page 59), argued that the appeal in

Gaffney v Gaffney was limited to the narrow issue of the claimed inadmissibility, by reason of estoppel by record, of evidence to

challenge the facts recited by the English divorce decree. He expressed the view that the remarks of Walsh J, quoted above, should

possibly be regarded as addressed to that point. The learned author accepted the general agreement among legal authors that

“marital status per se cannot be affected by a doctrine of estoppel.” However, he suggested that Gaffney v Gaffney did not consider

a more controversial question, namely whether “a spouse who has sought and obtained a foreign divorce can later claim that it

should not be recognised in order to gain some pecuniary or other advantage in respect of his or her spouse or the estate of the

spouse.” The author went on to argue for a place for the principle of estoppel, where a spouse, having obtained a foreign divorce,

denies its validity in order to obtain an unfair personal advantage. The principle might provide “a sound reason for denying the spouse

a specific remedy.” (emphasis added). It is not clear whether Mr Duncan would go so far as to permit estoppel of that hypothetical

spouse from denying the validity of his divorce in a case such as the present involving the validity of a subsequent marriage.

The Applicant has drawn attention to the fact that in at least certain States of the United States of America, where marriage is a

matter for the states, and in Canada, where it is a federal matter, possible reliance on estoppel is not excluded.

The first version of the Restatement of Law, Conflicts of Law, of the American Law Institute, stated, at section 74:

“The validity of a divorce decree cannot be questioned ... either by a spouse who has obtained such decree or divorce from a

court which had no jurisdiction or by a spouse who takes advantage of such decree by remarrying.”

In 1971, this statement was reformulated:

“A person may be precluded from attacking the validity of a foreign divorce decree if, under the circumstances, it would be

inequitable for him to do so.”

The accompanying comment on this text contains the following:

“The rule’s scope of application varies from state to state and, even within a single state, is often clouded with uncertainty. In

general, it can be said that a person who obtains a divorce and then remarries will not be permitted to attack the validity of

the divorce to free himself from his obligations to his second spouse or in order to claim an inheritance from the estate of the

first spouse…” (cited by Laskin J in Downton v Royal Trust Company, discussed below).

These extracts and a sample of cases decided by the courts of a number of states demonstrate that, at the very least, there is no

principled objection to the introduction of the doctrine of estoppel in order to preclude a spouse who has initiated or even from

participating in divorce proceedings before a foreign court lacking jurisdiction in accordance with normal domicile rules. Indeed, my

reading of the cases cited suggests that many American courts feel no need to address issues of status or public policy, treating the

matter of marriage as primarily a matter for the spouses. Mr Hogan, on behalf of the Respondent described as “fallacious” the

following passage cited from the judgment of the Court of Appeals of North Carolina in Mayer v Mayer 66 N.C. The Appellant. 522:

“We are not unmindful of [the] argument that to estop [the husband] from questioning the divorce’s validity would have, as he

puts it, the effect of validating a marriage which [the general law] declares a nullity. There is a difference, however, between

declaring a marriage valid and preventing one from asserting its invalidity. The theory behind the equitable estoppel doctrine is

not to make legally valid a void divorce or to make an invalid marriage valid, but rather to prevent one from disrupting family

relations by allowing one to avoid obligations as a spouse. Stated differently, equitable estoppel is dependant on events which

led to the divorce or which may have occurred after the divorce. It is a personal disability of the party attacking the divorce

judgment; it is not a function of the divorce itself.”

Despite the expressed disavowal of the intention to make an invalid marriage valid, that is precisely what the court wished to do by

its reference to “obligations as a spouse,” which appears to beg the question whether there is a (second) marriage. Indeed the

comment on the Restatement, which I have quoted, clearly implies that support for the validity of later marriages is, indeed one of

the policy considerations underlying the rule.

The Canadian Supreme Court would also, it appears, permit estoppel to be raised against a plea of invalidity of a foreign divorce. The

Applicant has cited the judgment of Laskin J in Downton v Royal Trust Company et al. [34 D.L.R. (3d) 403. The case bears one

resemblance to Gaffney v Gaffney, namely that it concerned a contest between two contesting spouses regarding rights in the estate

of the deceased husband. The learned judge identified from the earlier Canadian cases “the application of a preclusion doctrine

against a spouse, who having obtained a decree of divorce or nullity from a foreign 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.” Mr Duncan

cited this passage in support of the thesis advanced in his Irish Jurist article.

Laskin J went on, however, to qualify the generality of the proposition he had enunciated:

“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, ad hence, …… 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.”

There seems thus, based on this brief review, to be a significant difference between the US and Canadian courts. The Downton

judgment, at least, seems to attribute a value to the notion of marital status, as such, which seems absent from US case law.

The Court, in this case, must answer the question posed in the Case Stated fully conscious of the glaring injustice perpetrated upon

the Applicant by the fraudulent behaviour of the Respondent. No court will be happy to see him benefiting from his deceit. It is

probably the deceit of the Applicant, rather than of the Ohio court, that is the true gist of the injustice. If she had been fully aware

of the fraud that was being perpetrated on the Ohio court, she would have been in very much weaker position to invoke the doctrine

of estoppel. A possible answer to the argument based on deception might to pose a different hypothetical situation. If the plaintiff

had simply been married before and not divorced, validly or not, and had mendaciously concealed this fact from to the Applicant,

what would have been the position? Clearly, the second marriage would have been bigamous and invalid. In that situation, would the

Respondent have been estopped from referring to the earlier marriage? It is very difficult to see that he would. A court, confronted

with such facts at the outset of a judicial separation action certainly could not hold that the parties were married. Equally, it could

not give itself jurisdiction by holding that the Respondent was estopped by his deceitful behaviour from denying the validity of the

marriage. It seems to me that the issue has to be addressed as one of strict law.

I am prepared to accept, as a hypothesis, the argument propounded by Mr Duncan in his Irish Jurist article. A person who has

behaved as the Respondent in this case has done should, as a matter of general principle, be precluded by the doctrine of estoppel

from proving the invalidity of the divorce obtained by him from a foreign court on concocted and fraudulent evidence, where his

object is to obtain an unfair advantage over another or where he seeks a specific remedy. The real question is to identify the sort of

advantage or remedy which he should be precluded from getting. If, for example, he were to seek recovery of sums paid on foot of

the divorce decree, or otherwise to readjust property ownership with his lawful wife, the plea might have merit. Such a spouse might,

depending on the circumstances, find it difficult to maintain a claim to share in the estate of his deceased lawful wife. It will be

recalled that Walsh J was of the opinion that, if it had not been for the duress, the plaintiff in Gaffney v Gaffney would have been

bound to apply to the English court to set aside the divorce decree. None of those situations, however, so directly affect marital

status as does this one.

There was much discussion at the hearing about the distinction between actions in rem and in personam. It was generally agreed

that judicial decisions concerning marital status have traditionally been regarded as judgments in rem. They affect the entire world.

Decrees in matrimonial suits have long been considered to be judgments in rem. (se Bater v Bater [1906] P. 209]. Kenny J, in Gaffney

v Gaffney , cited Professor Falconbridge’s statement that if “the divorce is a judgment in rem purporting to affect the status of the

parties - therefore consent cannot confer jurisdiction on the court - the parties are still husband and wife.” While he criticised the

distinction as meaningless, he seems to have reached a conclusion substantially similar to that involved in the cited English cases. He

said 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 …” Walsh J, as quoted above, expressed himself in very similar terms. It is perhaps unattractive to describe a marriage,

even indirectly, as a thing. The essential point is that, whatever language is used, marriage involves status and has public-interest

implications.

I do not accept that any change has been effected either by the Family Law Act, 1995 or the decision of this court in G. McD v D. W.

(No. 2). Denham J, at page 7 of her judgment in that case, referred to the “in rem nature” of judgments as to marital status at

common law, recalling the dictum of Lord Simon of Glaisdale in Ampthill Peerage [1977] A. C. 547 at 576 that “if the judgment is as to

the status of a person, it is called a judgment in rem and everyone must accept it.” Denham J did not, however, consider it

necessary to decide upon the meaning of the expression: “if the Attorney General is a party to the proceedings, the declaration shall

be binding on the state …” Murphy J referred to this provision as “a difficult concept.” Nonetheless, he observed that the “very

nature of legal status is the public recognition which it enjoys (or endures) whether that status arises from contractual

arrangement or an accident of birth.”

Whether or not a judgment as to marital status is a judgment in rem is not, in my view, affected at all by the procedural and other

distinctions between English and Irish matrimonial proceedings. Mr Durcan’s strongest point seemed to be that matrimonial proceedings

heard in camera cannot bind the whole world, since the public does not know about them. It is clear, however, that the rationale for

the dictum of Butler Sloss L. J., quoted above, and of others has nothing to do with that question but is founded entirely on the

principle that justice should be administered in public. Butler Sloss made no distinction between matrimonial and other proceedings for

this purpose. It is true that the House of Lords, in Scott v Scott [1913] AC 417, Lord Haldane referring, at page 436, to matrimonial

proceedings, said that, because they “affect status, the public has a general interest which the parties cannot exclude…” Yet, the

Law Lords were proceeding from the general principle of open justice rather than making a special case for matrimonial causes. I am

satisfied that the purpose of the in camera rule applied to family law proceedings in this jurisdiction is to protect private and family

life from potentially distressing public and media intrusion and that it does not diminish the character of the decisions made by those

courts. They remain decisions as to status.

The question which directly arises is whether a judicial-separation action is an action in rem. Mr Durcan, accepted, at least initially,

that it is. It does not affect status; it does not change status, because it merely affects to parties mutual obligations to cohabit. On

the other hand, the entire jurisdiction is predicated on the existence of a marriage. Mr Durcan accepted that, in England, it has, for

that reason, been held to be an action in rem. The fact of the grant of a decree of judicial separation has a number of legal

consequences either flowing from the mere fact of the decree itself or from ancillary orders. The Respondent would be entitled to tax

relief on maintenance payments. Assets transferred pursuant to property orders are exempt from capital gains taxation. None of these

matters are, of course, undesirable in themselves. They merely demonstrate that the decree has certain objective legal effects

amounting to recognition in law of the marital status, though separated, of the parties.

The terms of section 29 of the Family Law Act, 1995. Sub-section (1) of that section provides:

“The court may, on application to it in that behalf by either of the spouses concerned or by any other person who, in the

opinion of the court, has a sufficient interest in the matter, by order make one or more of the following declarations in relation

to a marriage, that is to say:

(a ) a declaration that the marriage was at its inception a valid marriage,

(b) a declaration that the marriage subsisted on a date specified in the application,

(c) a declaration that the marriage did not subsist on a date so specified, not being the date of the inception of the

marriage,

(d) a declaration that the validity of a divorce, annulment or legal separation obtained under the civil law of any other

country or jurisdiction in respect of the marriage is entitled to recognition in the State,

(e) a declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is

not entitled to recognition in the State.”

Under these provisions, a court is empowered to make a number of different types of declaration regarding marital status. For

example, it would entitle the Notice Party to apply for a declaration of the continuing subsistence and validity of her marriage to the

Respondent, who could equally apply for a declaration that the Ohio divorce is invalid. If either such declaration were to be made, it

would conflict with any decree of judicial separation granted in the present proceedings. It would mean that there existed, in Irish

law, conflicting declarations as to the marital status of the Respondent. The public interest in such declarations is recognised by

provisions permitting the court either on its own motion or on the application of any party to order that notice be given to the

Attorney General, who may also himself apply to be joined as a party. Sub-section (8) provides:

“A declaration under this section shall be binding on the parties to the proceedings concerned and on any person claiming

through such a party and, if the Attorney General is a party to the proceedings, the declaration shall also be binding on the

State.”

In my opinion, it does not matter that the binding effect on the State depends on whether the Attorney General is a party. The

section has general implications for the marital status of the parties.

I am convinced, therefore, that judicial separation proceedings relate to the marital status of the parties to the action, even if they

do not change that status. Such proceedings depend on the parties being lawfully married to each other. The problem is not merely

that anomalies would flow from estopping the Respondent from impugning the validity of the Ohio divorce. The law is capable of

accommodating anomalies. The objection is more fundamental. It is that the effects of a decree of judicial separation would not be

limited to the private and personal rights and interests of the parties. The public interest is involved. The court itself is very directly

involved. The jurisdiction of the court presumes that the parties are married. Once they are not, the court can not entertain the

application. It would be closing its eyes to blatant evidence that it lacked jurisdiction.

I conclude, not without some regret, that the question posed in the Case Stated must be answered in the negative. This is not to

deny, in any sense, the concerns of the learned Circuit Court judge about the injustice to the Applicant. The injustice flows from the

actions of the Respondent in fraudulently inducing her into an invalid marriage. It cannot be remedied by making valid what was, from

the beginning, utterly void.