IESC 7 · Supreme Court

THE SUPREME COURT

[Appeal No: 8/2010]

Denham C.J.

Hardiman J.

O'Donnell J.

Clarke J.

Dunne J.

In the Matter of Section 38 of the Courts of Justice Act, 1936

In the Matter of a Case Stated to the Supreme Court

Between/

M.H.

Applicant/Appellant

and

G.H.

Respondent

and

The Attorney General

Notice Party

Judgment of Mr. Justice Clarke delivered the 3rd February, 2015.

1. Introduction

1.1 I write this brief concurring judgment for the purposes of setting out the reasons why I agree with the conclusions reached on the

issue in this case by Dunne J. as opposed to those proposed by O'Donnell J. I also write this judgment for the purposes of setting out

some general observations on what I see to be one of the underlying difficulties which this case throws up.

1.2 In addition to the general problems caused for parties to foreign divorces by the complicated and arguably uncertain state of

certain aspects of the relevant law (which Dunne J. has fully explored in her judgment), this case also seems to me to raise some

questions about the extent to which significant change to the law can or should come about by an evolution of the common law. It is

to that question that I first turn.

2. The Development of the Common Law

2.1 Until relatively recent times the law concerning the recognition of foreign divorces in Ireland was to be found in common law

principles. In more recent times other sources of law have come to have a significant importance in that area. There was, of course,

the constitutional issues which were determined by this Court in J.W. v. J.W. and the Attorney General [1993] 2 I.R. 476. There has

also been statutory intervention and European legislation.

2.2 But the divorce, the recognition of which is at issue in this case, certainly predates the national and European legislative

interventions which currently influence much of the law on the recognition of foreign divorces in this jurisdiction. The position in

respect of constitutional influence is, however, somewhat different. While it is the case that the divorce with which this appeal is

concerned predates the decision of this Court in J.W., nonetheless that decision is, of its nature, retrospective in effect.

2.3 It is, indeed, the potentially retrospective nature of developments in relevant jurisprudence on which I wish to touch. There is a

sense in which any development in the common law is potentially retrospective. The court, in declaring the common law when a case

comes to trial, is thereby applying the law as so declared to events which occurred, by definition, before the case came to trial.

Thus, any evolution in common law principles which are determined as a result of a case heard today necessarily involves applying

those principles to facts which occurred before that very evolution.

2.4 Much of the reticence which has been expressed in this jurisdiction concerning the over-ambitious change of the common law by

judicial decision has been placed in the context of a desire not to overstep the separation of powers by permitting the courts to slip

into what might properly be regarded as the constitutional legislative function of the Oireachtas (see most recently the judgments of

both Hardiman J. and myself in R. and ors v. An tArd Chláraitheoir & ors [2014] IESC 60 which, while demonstrating some

disagreement on questions of detail, both caution against an overbroad use of the evolution of the common law).

2.5 In speaking of the proper constitutional role of the courts in affecting change to the law, in R. v. An tArd Chláraitheoir, I said the

following, at para. 2.5:-

"However, it is clear that the role of the courts in that process, while important, is limited. Short of the existing law

being found to be in breach of the Constitution, the only proper role of the courts is to play their appropriate part in the

evolution of the common law in its application to new conditions and circumstances or to interpret legislation. Even

where it is clear that the existing law is no longer fit for purpose it may well be that the only solution lies in legislation.

This will particularly be so where any solution to identified problems requires significant policy choices and detailed

provisions beyond the scope of the legitimate role of the courts."

2.6 Hardiman J. expressly agreed with that passage in his judgment in the same case. The passage draws a distinction between the

proper evolution of the common law where the same fundamental principles are required to be applied, perhaps in quite a different

way, because of new circumstances and conditions, on the one hand, and changes which require policy choices and detailed

provisions, on the other.

2.7 However, in addition to the constitutional restriction there seems to me to be an important practical reason for exercising the

same caution. It is, of course, the case that the starting point has to be to acknowledge the need, as noted both by Hardiman J. and

myself in R. v. An tArd Chláraitheoir, to apply old principles to new circumstances and also to acknowledge that this may result in

something of an evolution of the common law.

2.8 There are both disadvantages and advantages as and between the evolution of the common law, on the one hand, and

legislation, on the other, as a means of keeping abreast with necessary developments. The problem with legislation is that it can

become outdated but, short of amending legislation, no means for its change exists even if it becomes fairly clear that it is no longer

fit for purpose. On the other hand the common law is quite adaptable to permitting the application of old principles to new

circumstances in a way which is much more likely to be fit for purpose.

2.9 Against that, common law evolution can suffer from a problem of timing. In this respect legislation (whether to amend existing

legislation or change the common law) has the advantage. The precise time at which a legislative change comes into effect is easily

determined. It is either the day on which the relevant legislative measure is finally passed by the Oireachtas or some later day

specified in secondary legislation in accordance with the terms of the relevant measure. In most cases it is fairly clear as to whether,

and if so to what extent, the legislation is to have any retrospective effect. Even where not expressly specified there are well

established principles of interpretation which can help to answer the question of whether any legislative amendment (outside the field

of the creation of criminal offences where retrospection is constitutionally prohibited) may be regarded as having some retrospective

effect. Thus, in the case of legislative change, the extent, if any, to which the change concerned can affect rights, obligations or

liabilities (deriving from a point in time before the legislation came into force) is normally fairly clear. The problem with an evolution in

the common law is that it necessarily involves applying the newly evolved interpretation of the law to facts which occurred at a time

when that new interpretation had not been determined. There is, thereby, inevitably some risk of unfairness.

2.10 Even where legislation is clearly intended to be retrospective to a greater or lesser extent it is likely that one of the

considerations which will have led to a decision to enact such retrospective legislation which will involved an assessment of the

consequences for those whose rights and obligations might be said to be retrospectively affected by the change in the law thus

affected. At least to date, common law changes deriving from an evolution in the jurisprudence inevitably affect events which were

the subject of the very case in which the relevant evolution occurred. It seems to me to follow that an added reason why the courts

should be slow to engage in overly radical changes in the common law must be to guard against the potential unfairness which might

arise in the necessarily retrospective effect of such a decision.

2.11 It must, of course, be acknowledged that one of the issues which arises in this case, at least indirectly, stems from the decision

of this Court in J.W. which had the effect of the then existing law of dependent domicile being declared to be unconstitutional. As a

consequence this Court determined that the law on the recognition of foreign divorces also had to change so as to allow for the

recognition of a divorce where one but not both of the parties was domiciled in the relevant jurisdiction. Obviously as long as the law

of dependent domicile continued to be recognised there was, in practise, no legal possibility of the parties to a marriage having a

different domicile. To that extent the constitutional decision by this Court in J.W. was necessarily retrospective in the sense that it

applied to the recognition of divorces which were decreed long before the decision of this Court was handed down. That is a

consequence of the constitutional jurisprudence in this jurisdiction which treats unconstitutional laws as never having been validly

enacted (if they post-date the coming into force of Bunreacht na hÉireann) or as not having been carried forward (if they be pre-

1937 legislation or the common law as it existed at that time). That is a complicating factor to which it will be necessary to return in

due course. However, against the background of those general observations, I now turn to a discussion of the core issue which arises

in this case.

3. Discussion

3.1 First, I agree with the analysis of the common law in Ireland as set out by Dunne J. in her judgment. I am satisfied that, prior to

developments over the last 30 years or so, the position as generally understood was that a foreign divorce would only be recognised

in Ireland if both parties were domiciled in the jurisdiction granting the divorce. Of course, at that time, the doctrine of dependent

domicile was perceived to remain as part of our law so that the test was, in practise, met if the husband was held to be domiciled in

the relevant jurisdiction.

3.2 It seems to me that the real issue which this Court has to address is as to whether it should now be taken that the common law

position, as it was understood to apply at the time but subject, for reasons to which I will turn, to constitutionally mandated change,

should be taken no longer to apply to divorces which were decreed at the relevant time.

3.3 I note, as O'Donnell J. notes, that this Court, in J.W., did acknowledge that the common law was not immutable and also

suggested that the recognition of foreign divorces should be based on the law of recognition as it is at the time when the question of

recognition comes up rather than as it might have been at the time when the relevant divorce was decreed.

3.4 Subject to the observations which I have made earlier in this judgment, I have no difficulty at all with the first of those

propositions. However, I am somewhat concerned about whether the second proposition can be said clearly to apply in all

circumstances. It is, in that context, important to note the way in which a legislative change would operate in this context. It would,

of course, be open to the Oireachtas to consider whether it was appropriate to legislate for the recognition of foreign divorces in a

way which retrospectively altered the status of individuals. Persons who considered themselves to be divorced might, as a result, no

longer be considered to be divorced and vice versa. There could be adverse consequences for such persons and, indeed, third parties

whose status might, in turn, be affected. But it might be felt that whatever change was being brought about was, on balance, in the

public interest, which interest might be considered to be better achieved by some degree of retrospection even though there might

be some such difficulties thereby created.

3.5 As noted earlier the difficulty with a significant alteration in the common law brought about by judicial decision is that it would, at

least on the current state of the jurisprudence in that regard, necessarily be retrospective. Even if there were sound reasons of

policy as to why the existing common law position was outdated and ought be changed, the very fact that a change by judicial

decision can have adverse retrospective effects can provide a very good reason why a change, though desirable, should be left to

legislation. Whether it might ever be possible to give effect, by judicial decision, to a change in the common law without same being

retrospective is an issue which was not debated in this case and on which I would, therefore, not wish to express any view.

3.6 Where a change involves the application of existing principles to new circumstances then the difficulties with retrospection may

be significantly diminished. A person may be faced with considering their legal rights and obligations in circumstances where the law

applying to the relevant issues is the common law and where the case law might be said to be somewhat outdated by virtue of having

evolved when circumstances were different. Such a person will necessarily have to seek to predict how that law might be interpreted

in the light of modern and changed circumstances. Thus the prospect of a reinterpretation of the law in the light of changed

circumstances would have to be taken into account.

3.7 Where, however, the change under consideration is one which might be said to be significant and involve new or adjusted

principles, then the problem of retrospection looms larger and affords, in my view, a particular reason for significant care being

exercised. One of the important policy considerations which would arise in any significant legislative change is the extent, if any, to

which the change should be retrospective. In many cases the disadvantages of retrospection may be such that it is hardly

considered. However, where, at least to some extent, consideration is being given to change which might involve some degree of

retrospection then important policy choices can arise. If one assumes, for the sake of argument, that there is consensus that the

existing law is outdated or otherwise inappropriate, it does not necessarily follow that changing it with any retrospective effect is

desirable. A detailed assessment of the advantages and disadvantages would require to be carried out and may well involve policy

choices. Furthermore, it might, at least in some cases, be necessary to put in place detailed measures to govern the extent of any

retrospection precisely because a blanket retrospective change would be considered to have disproportionate adverse effects. Thus a

radical change in the common law in a manner which is necessarily retrospective may require the very sort of policy choices and

issues of detailed implementation which are more appropriate to legislation. This will particularly be so where the retrospective nature

of the change would affect events which occurred a very considerable period of time in the past and where the change could have

significant effects on the rights and obligations of individuals. Likewise, such problems are exacerbated where the relevant law, at the

time when the events under consideration occurred, appeared to be relatively well settled.

3.8 In this case the court is, in effect, being asked to declare that the common law, relevant to the time when the divorce which is

the subject of these proceedings was decreed, is very different, so far as recognition of foreign divorces in Ireland is concerned, to

that which would have been considered to be the case at the time. It is a radical change that is proposed and one which could have

a very significant and significantly retrospective effect. It is, in my view, the sort of change which should properly be brought about,

if it is considered desirable, by legislation. Limping marriages do create problems. But so also do springing divorces. Legislation is the

answer.

3.9 Such legislation may very well be desirable for the reasons addressed in the other judgments in this case. The current state of

the law is potentially very unsatisfactory. However, one of the factors which any such legislation would have to take into account is

the question of retrospection. That involves important policy considerations requiring detailed consideration and, perhaps, detailed

measures. That is exactly the sort of change which, as I suggested in R. v. An tArd Chláraitheoir, is much more suitable to legislation.

For those reasons I would not be disposed to embark on the exercise of reinterpreting the common law so as to make it applicable to

events which occurred a very long time ago in a way which was significantly different to the way in which that law would have been

interpreted at the time in question.

3.10 Finally, I propose to return to the constitutional issue. As O'Donnell J. points out, an aspect of the determination of this Court in

J.W. had the effect of bringing about retrospective change. There certainly were marriages which, prior to the decision of this Court

in that case, might have been considered to subsist in Irish law but which would, as a result of that decision, have been,

retrospectively as it were, considered to have been dissolved. The issue of retrospectivity is not, of course, made any easier by the

fact that the issue which gives rise to it is one of the application of the Constitution rather than one involving of the common law.

But it may be that the adverse consequences of retrospection are a necessary, if undesirable, consequence of the constitutional

regime. If a law is unconstitutional it must be declared so even if there may be some unavoidable adverse consequences. For the

purposes of this case I will confine myself to expressing the view that the fact that J.W. effected, in practise, a retrospective change

in the applicable law so far as the recognition of foreign divorces in Ireland was concerned does not change my view that it would be

inappropriate to bring about another significant retrospective change in that law by means of a reinterpretation in quite a significant

way of the relevant common law principles.

3.11 I would add just one more observation. Further complications will necessarily arise from any law which is changed with

retrospective effect. This applies whether the change is brought about by legislation, by a reinterpretation of the common law or as a

result of a constitutional decision such as J.W. One of the issues which arises concerns rights and obligations which may already have

been determined by the courts prior to the change concerned. What would be the position in respect of a divorce whose recognition

in Ireland had been the subject of a judicial determination based on the "old" view of the common law and which, as a result of such a

determination, was found not to be recognised? Does it suddenly become recognised now because the common law has been

reinterpreted, or does it, as a result of the fact that it has already been the subject of a judicial determination, remain unrecognised

even though another divorce which occurred in exactly the same circumstances would now be recognised? These are difficult

questions. However, if a retrospective change is brought about by legislation then it might be expected that some attempt would be

made to deal with questions of that type. Indeed, it might be envisaged that a point could be reached where the difficulty in dealing

with such issues might be such as to lead to the view being taken that the legislation should not be retrospective at all. While it may

be, of course, that similar problems arise in the context of a constitutional determination such as J.W., such problems provide, in my

view, a further reason for exercising significant caution about a reinterpretation of the common law which can affect events which

occurred a very long time ago and which may have significant unintended consequences.

4. Conclusions

4.1 For those reasons I agree with the analysis of the difficult issues which arise in this case as set out in the judgment of Dunne J. I

have come to the view that to attempt to retrospectively reinterpret the common law, at the remove of a significant period in time,

so as to effect the recognition of a foreign divorce in a way which is very different to that which would have been the case at the

time when the divorce in question was decreed, is not justified. Whatever the problems with the existing position and whatever the

merits of any proposed solution the degree of retrospection involved raises the risk of unintended consequences and involves the kind

of policy questions and issues of detail which are more appropriate for legislation.

4.2 I would, therefore, like Dunne J., answer the first question posed to the court "no". Having regard to that answer I am also of the

view that it is not necessary to answer the second and third questions.