JUDGMENT of Mr. Justice Abbott delivered on the 27th day of July, 2009
1. The applicant (wife) was married to the respondent (husband) on
the 25th May, 1996, in Ireland within this jurisdiction. There are six
children of the marriage, the eldest born on the 25th March, 1997, and
the youngest on the 16th April, 2005. By special summons dated the 4th
June, 2008, the wife sought judicial separation in these proceedings from
the husband. The jurisdiction of this Court and the entitlement of the wife
to a judicial separation has been contested by the husband.
Background of the Marriage
2. The wife is 46 and the husband is 60 years of age. Both are English
citizens. The parties met in 1990. At that time the husband had become
a UK tax exile and had established a business in the Cayman Islands.
When the parties married in 1996, they resided in Ireland moving their
home three times to its present location. However, they remained an
extraordinarily mobile family, as they moved whenever mother and
children were fit to travel, generally, between their home in Ireland, a
home in the Cayman Islands and, more or less the same summer holiday
hotel in France. The exact details of this triangular movement will be
examined in some detail in this judgment as it is pertinent to the issues
arising.
Litigation History to Date
3. An interesting feature of the proceedings is that whereas the special
summons issued on the 8th May, 2008, and was served a short time
thereafter, the wife did not swear a grounding affidavit until the 7th
October, 2008, – an affidavit of means having been sworn together
with an affidavit of welfare on the 2nd October, 2008. A conditional
appearance was entered by the husband on the 9th October, 2008. The
wife served a notice of motion returnable for the 23rd January, 2009,
seeking, what, in approximate terms, may be described as a Maerva
injunction in relation to the husband’s property, and an order deeming
the appearance entered by the husband on the 9th October, 2008, to be a
conditional appearance, or further or alternatively, an order directing the
husband to enter an unconditional appearance to the within proceedings,
together with miscellaneous relief, and, (perhaps a little over ambitiously)
an order permitting the wife to prosecute the proceedings, as though they
were undefended. The husband served a notice of motion returnable on
the 30th January, 2009, seeking the following relief:
1. An order determining whether the court has jurisdiction to determine
the proceedings.
2. Without prejudice to the foregoing an order determining whether or
not, if it has jurisdiction to determine the within proceedings, which was
denied, ought to exercise that jurisdiction having regard to the principles
of forum conveniens and/or determining whether or not there is a more
convenient jurisdiction in which the matrimonial issues arising between
the parties might be determined.
3. Without prejudice to the foregoing, an order for the determination,
as a preliminary issue, whether or not the grounds upon which a decree
of judicial separation (and the ancillary reliefs consequent therefrom)
are sought by the applicant are satisfied and whether the court has
jurisdiction to grant an order for judicial separation pursuant to s. 3 of the
Judicial Separation and Family Law Reform Act 1998.
4. Further or in the alternative an order staying these proceedings
pursuant to the provisions of Council Regulation No. 44/201001 (Brussels
I) and/or Council Regulation No. 2201/2003 (Brussels II bis) or otherwise,
as may be appropriate.
This notice of motion was grounded on affidavits sworn on the 28th
January, and it is sufficient for the purposes of this introductory narrative
to quote the grounds which are relied upon by the husband set out in
paragraph 3 of that affidavit as follows:
(i) “The applicant did not comply with s. 2(1)(b) and 2(1)(f) of the Judicial
Separation and Family Law Reform Act when filing her special summons
of the 8th May, 2008, although she relied on ss. 2(1)(b) and 2(1)(f)
in her special summons and grounding affidavit. The applicant cannot
demonstrate under s. 2(1)(f) that a normal marital relationship had not
existed between the spouses for a period of at least one year immediately
preceding the date of application for judicial separation since my wife and
I have been living a normal marital life until eight days before she filed
her special summons. Furthermore, the applicant cannot show that under
s. 2(1)(b) that I had behaved prior to 8th May, 2008, in a way that she
cannot be reasonably expected to live with me. It is my contention that
she filed for a judicial separation on May 8th as a direct result of meeting
another man on April 30th, 2008, and becoming immediately and totally
besotted with him. I say that there is simply no factual or evidential basis
upon which the applicant had any right to file a summons for judicial
separation on May 8th, 2008 and I maintain that I never behaved in such
a way at any time during the course of our marriage to justify a claim
under s. 2(1)(b).
(ii) I further say that this Honourable Court does not have jurisdiction
to determine the within proceedings on the basis that I do not believe
that the applicant has at any time been habitually or ordinarily resident in
Ireland, nor has she been or is she domiciled, in Ireland.”
The affidavit continues to describe the marriage in detail and also relies
on the extensive business interests of the husband in the Cayman Islands,
together with other connections of the family there, indicating his claim
that the marital disagreements should be heard by a court in the Cayman
Islands as a more convenient forum. To substantiate this claim the
husband had initiated proceedings for divorce in the Cayman Islands
and, while it is as yet not clear whether a pre-nuptial agreement made
between the parties on the 11th May, 1996, in Florida may have any
weight either in Irish or Cayman Island proceedings, it is fair to say that
if such an agreement were to have weight of any significance, there is a
fear on the part of the wife that it would have more weight in relation to
certain very restrictive provisions affecting her in the event of the case
being heard in the Cayman Islands. By order made ex parte on the 23rd
January, 2009, this court ordered that:
1. That the husband be restrained until further order of this Court from
continuing to prosecute the Cayman Islands divorce proceedings, and
2. The husband be restrained until further order of this Court from
disposing or otherwise dealing with his assets wherever situated in such a
way as to reduce their value below EUR40m of there value as of the date
of the said order, whichever shall be the lesser sum.
And the motion was made returnable for interlocutory hearing on the 30th
January, 2009.
4. In subsequent hearings by the Court the injunctive relief granted in
that order has been continued on foot of appropriate undertakings given
on behalf of the husband.
Facts Relating to Residence
5. The husband was born in England and after University he was
employed in England for some time. He became resident in Cayman in
1975, and developed his business from there. This was a communications
business and was international in nature, necessitating frequent travel
by the husband. He is an outstanding and energetic business man, and
his business prospered due to his talents and was helped, no doubt, by
the favourable taxation status which he acquired through his move to
Cayman. The wife was also English born, and having graduated there
with a language based degree, and engaged at a high level in amateur
University drama, she obtained a media job as a journalist in England.
6. The husband had an interest in bloodstock and racing from an early
age, and the wife met the husband through her work as a journalist
when dealing with racing matters with the husband in or about the
15th June, 1990. A relationship developed between them quickly, and
the wife went to live with the husband in Cayman, and for most of the
time she resided with him in the Cayman and became an employee in
his business. The wife moved out to Cayman in December, 1990. The
husband also had an apartment in Florida, and they spent most of the
winter months travelling between Florida and Cayman and two other
islands, such as Jamaica, where he had significant business interests.
The wife said that in or about April or May the following year in 1991,
they came back to England to follow the horses, and from then on it is
fair to say that they led a peripatetic lifestyle. This was typified by the
husband’s boast, (when he met the wife first), that for up to twenty years
he had not spent more than two weeks in one place. When they were in
England they had a flat in London and a house in Scotland, but they also
spent time in various hotels and other places in England to follow racing
interests. From the outset, therefore, the husband (and, in a dependent
fashion), the wife, had two focuses of interest, one the Caribbean and the
larger world relating to the media communications business; and United
Kingdom, (and to a lesser extent Europe) in the summer for the racing
interest. The couple would usually spend the months between May and
September, October on this side of the Atlantic and the rest of the year on
the American side.
7. The husband retired from his media communications business in 1991,
and was very successful in selling this business. His retirement did not
last long however, and he soon established another business centred
around ideas he had for leisure and tourist businesses in and around the
Caribbean. He sold most of his interest in that other business in or about
1994. However, it cannot be said that he has ever retired in a general
sense and his life is still punctuated by frenetic involvement in business
interests and the travel they entail.
8. In or about March, 1993, while attending a sporting event, the couple
became interested in living in Ireland, and, friends introduced them to a
sports and country club to which residential accommodation was attached
(hereinafter referred to as the Irish Club), where they purchased an
apartment. They had a house warming for the Irish club apartment in
June of 1993, as they had acquired a lot of friends in Ireland through
the racing world, and from then on, the apartment in the Irish club took
over the role of the house in Scotland and, while the peripatetic lifestyle
continued, the couple spent more and more of their time in Ireland.
9. The couple became engaged to marry each other in September, 1994.
Around that time they had some discussions in relation as to where they
would like to live as a married couple. The wife felt that the Cayman was
not the right place to bring up a family. She wanted to be nearer home.
The husband agreed with that view because he wanted to have a family,
and if the couple were going to have a family it should be somewhere
the husband said he felt there were family values. The husband was a
Roman Catholic but the wife was not – she became a Roman Catholic
last year – but the husband expressed a view that he wanted to bring his
children up in a place that had strong family values and catholic values.
Given the existing mind set of the engaged couple at that time the choice
seems to be between Ireland and England as a place that might meet
their preferences for their children, but they decided that Ireland fulfilled
all those requirements as they had a good circle of social friends, both
social friends and racing friends in Ireland and they liked the way of life
here. Ireland was also very convenient for travelling to England, in the
summer, to continue to follow the husband’s racing interests. Although
the couple did not dwell too much on the taxation aspect of the husband’s
life dictating that he would not settle down to married life in England,
the choice of Ireland above England would in an objective sense seem to
have been heavily influenced by the fact that living in Ireland would not
prejudice the husband’s very valuable non-resident tax status in the UK.
10. The couple married in May, 1996 in a Roman Catholic provincial
church in this jurisdiction and the wedding reception was in the Irish club
where the couple had their apartment.
11. When the couple had been married, and there was the possibility of
having a family, they decided they wanted to establish a stud farm in
Ireland. The husband had some brood mares in Ireland, but wanted to
see more of them, and to be personally more involved in the breeding
side of things. The first child was born while the couple lived in the
apartment. By the time the second child was born in September, 1998 the
couple had moved out to a rented house in the Irish club estate.
12. After the second child was born the husband went to the American
side of the Atlantic on business and entrusted the wife to seek out a
suitable stud property. The preference was to have suitable ground not
far from the airport. The husband pressed the wife on the telephone from
America to hasten her search and eventually the wife discovered a 174
acre stud farm already with post rail paddocks and a barn of 32 loose
boxes with a Georgian house, known as T. house – a bit further afield than
the preferred striking distance from the airport. The husband returned,
liked the property, and quickly signed the contract for its purchase.
The couple moved into the T. house in 1999, and in late 1999 the third
child was born. T. house was then a fairly basic Georgian farmhouse
and in January, 2001 the couple started a major renovation/extension
programme with lasted about twenty months. The husband took the
conveyance of the house in his own name and it seems that the couple
did not need to borrow to fund the purchase. Renovation and extensions
to the house cost about £ 1,000.000 and were extensive, leading to
a very imposing seven bedroom Georgian house. Subsequently, the
husband built a stand-alone office premises, which has become the focal
point of his business interests in the world, housing, as it does, his able
assistant, who could be described as the assistant chief executive of his
business (as the husband continues to be a seriously hands-on manager).
This office premises in T. house estate is on a grand scale, exemplified by
his own personal office which is in the region of 20 feet by 30 feet in area
and lined with mahogany panelling.
13. Additional lands were purchased to make the estate one of over 200
acres and, on part of the estate a grass landing strip was developed
to facilitate the family’s eight seater plane. Initially two studs were
developed with separate managements, but of late these have been
integrated. Extensive buildings were constructed by way of barns and
loose boxes to expand the range of the breeding business carried out on
T. house. There was no training carried out there, save for the use of an
exercise ring constructed by the husband for the purpose of, inter alia,
preparing yearlings. The husband has continued to maintain an interest
in racing but his training is done by trainers outside T. house. Over the
years a number of other dwelling houses were constructed on T. house,
generally to facilitate staff of the house and stud – there may be now
as many as seven houses on the estate, all recently constructed –. In
the recent past the family have constructed and developed a large full
size sports pitch with pavilion on a grand scale for a sum in excess of
seven figures. In addition to the sports ground, there are several areas
developed for sports and pastimes of adults and children on a smaller
scale. There may have been as many as 40 brood mares between the two
studs. The husband has stallions but not on the T. site – they are kept
at a specialist establishment elsewhere in Ireland, but he uses “outside”
stallions as well. The stud farm at T. house does not seem to be significant
as a profit generator within the context of the husband’s business
interests, but the couple seem to be well pleased with the success of
the stud farm business, as it is capable of generating considerable cash
and they have had at least one very notable success in sales of young
bloodstock. They have also raised very successfully a number of home
bred horses. The couple, and especially the husband, are certainly very
proud of the stud operation, and when anybody comes to stay at T. house,
the first thing the husband does is to take them on “grand tour” of the
estate. The husband was always a very keen sportsman and is equally,
if not more proud, of the recently constructed sports pitch and pavilion
which, (although not quite up to international standard) has hosted
at least one international challenge match at its opening, and notably
has hosted a visiting schoolboys team from his son’s English school at
A of which his son is a member when they played an Irish schoolboys
selection. The visiting school’s side were accommodated at T. house
estate and this necessitated provision for fifteen in all – eleven year old
boys, two teachers, the headmaster and sports coach.
14. When the couple bought T. house, a housekeeper came with the
property, and she remains employed by the couple, although now 73. A
gardener cum handyman also came with the property. The staffing has
expanded however, and at one stage there were three nannies to help
with the children, who continued to be born in quick succession, and
there were (certainly prior to the recession), between ten and twelve staff
employed on the stud end of the business.
Husband’s Business Patterns
15. In addition to keeping up his business interests on both sides of
the Atlantic, the husband became chairman of a busy administrative
organisation in England (hereinafter referred to as the “A.O.”) for six
years. His term of office in that position ended in or about 2004 and this
meant frequent international travel from whatever base the husband was
using at the time, and also involved frequent social outings, dinners and
presentations where the husband was accompanied by the wife. While the
activities of the A.O. continued throughout the year, the husband was, in
general, able to concentrate on them more during the summer months,
while on this side of the Atlantic. He thus became a very busy man and
led an extremely frenetic life and this does not seem to have abated to
any significant extent, even after he ceased his chairmanship.
The Children’s Lives
16. The children were all born in Dublin and the pre and post natal
arrangements, together with the confinement, were all arranged in Dublin
and hence it is safe to assume that their medical records commenced and
remain in Dublin. Whenever the mother and children were fit to travel
after birth, the family travelled after Christmas every year to the Cayman
and remained there until Easter, where they went to school and lived in
the original apartment owned by the husband which was augmented by
the purchase of another apartment across the courtyard on the same
complex, which provided ample accommodation for the children and the
nannies (if they travelled with them). The children attended a Roman
Catholic school in Cayman but they were nevertheless tutored by their
mother in relation to the Irish school curriculum while in Cayman so that
they did not fall behind. Apparently, the exit of the children from the Irish
school to the Cayman school was organised and approved by the Irish
School Authorities. It was not contested that the standard of the Cayman
school was not as high as the Irish school, and that the Irish school
provided the main thrust of the children’s education. A considerable
amount of packing was necessary to bring the children with the parents
to the Cayman and this represented a considerable strain for the wife.
She said that the strain was much less and/or easier to bear in relation to
the packing to return to Ireland, as she regarded such return as returning
to “home”. While the children did not have the extensive field sports
facilities available in Cayman as they had in T., there nevertheless was
the beach and the beautiful weather to compensate, enabling them to
play cricket and beach sports, but perhaps not to the level of intensity and
organisation as in Ireland. There was no private beach attached to the
apartment in Cayman.
Last Stay in Cayman in 2008
17. The stay of the family in Cayman in winter/spring 2008 followed
the same pattern as heretofore with three significant changes. Firstly,
the family travelled over for the first time for Christmas and spent
their Christmas in Cayman. Secondly, T. the eldest son, left with the
husband for his boarding school in England via Ireland on the 6th January,
2008, approximately, and thereafter the husband was absent from the
Cayman for most of the term. There was also a change in the living
accommodation insofar as the second apartment had been rented in
2007, and thus, the family had to live in more cramped conditions where
a nanny had to sleep on a sofa in the husband’s office in the apartment.
In addition to busying herself with looking after the five remaining
children, the wife also acted as a negotiator –cum – Clerk of Works
in respect of a development project where the husband was having
difficulties with the persons employed to execute same. Whereas the
husband had an administrative person to deal with day to day matters,
her responsibilities were not extended and required to be complimented
by the input of the wife.
Social Life in Cayman
18. The social life consisted of dinner parties back and forth between
private houses, outings to restaurants and functions in golf clubs.
Plans for Cayman in the Future
19. Both husband and wife had a desire to build a house on a site
acquired by the husband and move out from the apartments, but this plan
has not come to fruition and the husband at the time of the hearing is
endeavouring to sell the site.
Tax Implication for Life of Couple
20. Generally, with the exception of one year for Ireland, the husband’s
tax status in both the UK and Ireland was that of a non-resident. It is
unnecessary to go into the absolute detail of the exact requirements to
retain such non-resident status in both countries, but suffice it to say
that, a rule of thumb test is that the person claiming non-resident status
should be absent from each country for a period of 183 days. This means
that Ireland is a convenient place in which non-resident tax status in
the UK may be enjoyed, and at the same time, be within commuting
distance. This facility was very apparent during the tenure of the husband
as chairman of the A.O., where his weekly involvement might be from
Monday to Thursday in the UK or, locations dictated by his involvement
in the UK from which he could fly “home” to Ireland as he described it.
He also on further consideration mentioned that flying “home” when
operating on the other side of the Atlantic meant flying back to Cayman.
He does not have any tax status in Cayman as such, except that his non-
resident tax status in Ireland or U.K. means that he does not pay any
tax on income in Cayman as for the practical purposes of this case, there
is no tax in Cayman. No application for Irish children’s allowances was
made, although raised by the wife with one of the husband’s assistants in
the financial area. The reason advanced to the wife by the husband was
that, people such as the husband and wife with considerable assets should
not depend on the State for payments. However, the reason may also
have something to do with staying away from the clutches of the Irish and
perhaps even the UK Revenue Authorities by putting information for the
purpose of claiming the children’s allowances, which might prejudice the
non-resident status for tax purposes in either, or both countries.
Application for Right to be a Caymanian by Wife and other Applications by
Husband
21. By letter of the 9th February, 2007, the wife applied to the Caymanian
Authorities for the right to be a Caymanian. She had been a permanent
resident of Cayman since February, 1998 and her husband was granted
the right to be a Caymanian “a few years ago”. A guide to applicants in
relation to an application for the right to be Caymanian on the grounds of
marriage was produced to the court. this leaflet refers to s. 22(4) of the
Immigration Law 2003, and stipulates:
“Any person
(a) who has been married to a Caymanian – …(e) who is legally and
ordinarily resident in islands immediately preceding his application…may
apply to the Board for the grant of the right to be Caymanian.” The note
to this section provides “legally and ordinarily resident” as defined by
the Immigration Law 2003, as meaning “the voluntary, physical presence
in the islands for a period of time without legal impediment of a person
(other than a tourist visitor or transit passenger) during which period he
regards the islands as his normal place of abode for the time being, save
that absences abroad for purpose of education, health or business during
such period shall count as a residence in the islands”. The application for
grant for right to be Caymanian was produced to the court. It was signed
by the wife and dated the 9th February, 2007. This application was to
be grounded on affidavit and the inaccuracy or falsity of any statement
or representation contained therein may be a criminal offence under
Caymanian law. In that application the wife stated, inter alia, that she
was a citizen of the United Kingdom, had a United Kingdom passport
and in answer to query No. 4 stated that in addition to being a citizen
of those countries, she was also a permanent resident in the Republic
of Ireland and stated that prior to coming to the Cayman Islands the
addresses where she lived for more than six months during the past ten
years were from March, 1999 to present T. house, Ireland, and from
March, 1999 to June, 2003 in the Irish Club, Ireland. In response to
question 9, she stated that her assets and property were a share of a
family estate in Ireland and family home in Cayman. It appears that
she furnished a certificate from the officer in charge of the Criminal
Records Office certifying that there were no convictions recorded in the
criminal records of the Cayman Islands against her, and which stated
that she was a “resident of the Cayman Islands”. At the same time, the
husband signed the declarations required for the Irihs registered company
O.H.A.S. Limited, and Irish company on the 30th September, as an Irish
resident individual, and also the husband signed a Change of Director
details return for the same company on the 3rd October, 2008, as an Irish
resident individual.
Return from the Caymans
22. After the family returned from the Cayman Islands the children
went back to school in Ireland subject to holidays having been taken
using Ireland as the base, either by the husband and wife alone or by
the entire family, so that in comparative staffing terms, Cayman versus
Ireland, apart from one administrative person left in the Cayman, (who
has already been described), the domestic staff arrangements in relation
to the apartment were skeletal to say the least, but they did facilitate
occasional visitors to the apartment while the husband and wife were not
using same. The staffing arrangements in T. estate however, continued
unaltered even in the absence of the family in the Cayman, with the
exception that the nannies may have travelled with them to the Cayman
and also on holiday, especially to France.
The Law in Relation to Jurisdiction
23. The jurisdiction in relation to divorce and legal separation is set out in
Brussels II bis (Council Regulation (EC2201/2003)). Article 3 of Brussels
II bis relating to general jurisdiction provides as follows:
“1. In matters relating to divorce, legal separation or marriage
annulment, jurisdiction shall lie with the courts of the Member State.
(a) In whose territory:
– the spouses are habitual resident, or
– the spouses were last habitually resident, insofar as one of them still
resides there, or- the respondent is habitually resident, or
– in the event of a joint application, either of the spouses is habitually
resident, or
– the applicant is habitually resident if he or she resided there for at least
a year immediately before the application was made, or
– the applicant is habitually resident if he or she resides there for at least
six months immediately before the application was made and is either
a national of the Member State in question or, in the case of the United
Kingdom and Ireland, has his or her ‘domicile’ there;
(b) of the nationality of both spouses or in the case of Ireland or the
United Kingdom of both spouses.”
24. Article 6 of Brussels II bis dealing with exclusive nature of jurisdiction
under Articles 3, 4 and 5 provides:
“A spouse who:
(a) is habitually resident in the territory of a Member State: or
(b) is a national of a Member State, or in the case of the United Kingdom
and Ireland, has his or her ‘domicile’ in the territory of one of the latter
States may be sued in another Member State only in accordance with
Articles 3, 4 and 5.”
25. Article 7 of Brussels II bis dealing with residual jurisdiction provides in
paragraph 1 as follows:
“1. Where no court of a Member State has jurisdiction pursuant to
Articles 3, 4 and 5, jurisdiction shall be determined, in each Member State
by the laws of that State.”
26. Section 31(4) of the Judicial Separation and Family Law Reform Act
1989, provides in relation to jurisdiction of the National Court in this
instance as follows:
“(4) The jurisdiction referred to in subsection (2) of this section shall only
be exercisable where either of the spouses is domiciled in the State on the
date of the application commencing proceedings or is ordinarily resident
in the State throughout the period of one year ending on that date.”
27. Brussels I (Council Regulation (EC44/2001)) dealing with jurisdiction
in relation to maintenance claims provides as follows:
“1. This regulation shall apply in civil and commercial matters whatever
the nature of the court or tribunal. It shall not extend, in particular, to
revenue, customs or administrative matters.
2. The regulation shall not apply to:
(a) the status or legal capacity of natural persons, rights and property
arising out of a matrimonial relationship, wills and succession.”
28. In relation to special jurisdiction regarding maintenance matters
Article 5, paragraph 2 provides as follows:
“2. In matters relating to maintenance, in the courts for the place where
the maintenance creditor is domiciled or habitually resident, or if the
matter is ancillary to proceedings concerning the status of a person, in the
court which, according to its own law, has jurisdiction to entertain those
proceedings, unless that jurisdiction is based solely on the nationality of
one of the parties.”
29. I note from the explanatory report of Professor Borras in relation
to the Brussels Convention on Parental Responsibility and its successor
and the recital of its successor Brussels II bis, that Brussels II bis does
not deal with maintenance, although the court having jurisdiction under
Brussels II bis to deal with judicial separation may well have jurisdiction
to deal with maintenance otherwise. Under Brussels II bis the court
dealing with separation or divorce cases has jurisdiction to deal with
matters of parental responsibility in relation to the children, and hence, I
shall not deal with jurisdiction in relation to children.
30. On the authority in Van den Boogaard v. Loumen [1997] E.C.R.
1147, paras. 21, 23 it is now widely accepted that maintenance within
the meaning of Brussels I may include a lump sum providing for the
needs of a spouse or children in the nature of maintenance. On this
principle, I hold also that the concept of maintenance may be extended to
pension adjustment orders where the purpose of the pension adjustment
order is to provide maintenance type support for parents or children.
A residual question remains in relation to potential provision over and
above maintenance in the way of a lump sum or other provision, which
may under the approach adopted in the cases following T. v. T. in relation
to ample resources cases, to reflect a payment approaching equality or
indicating parity of esteem may be dealt with in the event of the court
having jurisdiction to hear these judicial separation proceedings under
the general jurisdiction of Article 3 of Brussels II bis. This issue was dealt
with briefly in the judgment of Sheehan J., in O.K. v. A. [2008] IEHC 243,
where at paragraph 11510 he stated as follows:
“With regard to the final point of Mr. Duncan’s submission that this
Court might stay these proceedings in whole or in part and on terms,
the only matter that remains to be considered is whether or not the
question of ancillary financial relief whose jurisdictional basis in this case
is under domestic legislation, is still subject to the doctrine of forum non
conveniens. In our law, judicial separation is inextricably linked to “proper
provision” for dependent children and divorce under Article 41 of the
Constitution is also inextricably linked to “proper provision”. It is difficult
to envisage how these matters can properly be separated….”
31. In the case S.J.N. v. P.O’D. (Abbott J.), I held that proper provision
included a lump sum, some or all of which must have been over and
above maintenance on the basis of (inter alia) the need to keep the
husband and father of the children “bubbly” for them. Thus, I hold that
the strictures of s. 3(1) of the Act of 1989 require that before granting
a decree of judicial separation, the court must consider that the order is
in the interests of the children and this means that provision is made for
them and that provisions is made for the spouses who will be their carers.
32. Article 5 of Brussels II bis relating to conversion of legal separation
and divorce provides:
“Without prejudice to Article 3, a court of a Member State that has
given a judgment on a legal separation shall also have jurisdiction for
converting that judgment into a divorce, if the law of that Member State
so provides.” While this provision only has application to judgments in this
jurisdiction which “dovetail” in a planned way with each other, it does put
judicial separation in the same category as divorce and this lends weight
to the view of Sheehan J., in O’K. v. A. in relation to proper provision
being a precondition for judicial separation.
The Law in relation to Habitual Residence
33. In Marinos v. Marinos [2007] E.W.H.C. 2047 (Fam.)(3rd September,
2007), habitual residence within the meaning of Brussels II bis was held
to have an autonomous meaning in Community Law which is derived from
the jurisprudence of the European Court of Justice (Pedro Magdalena
Fernandez v. Commission of the European Communities (Case C-452/93P)
[1999] E.C.E. 1-4295; Robin Swaddling v. Adjudication Officer (Case
C-90/97) [1999] E.C.R. 1-01075, [1999] 2 F.L.R. 184), and at paras. 25
and 26 of that judgment Mumby J. stated:
“There is as yet no decision of the ECJ directly in point as to the meaning
of Article 3 of the Regulation. But the explanatory report on Brussels II
prepared by Alegria Borras (Official Journal of the European Communities
C221/27, 16th July, 1998) is illuminating. The discussion is of Article 2 of
Brussels II but it is equally applicable to Article 3 of Brussels II (revised).
In para. [30] it is said that:
‘The grounds adopted are based on the principle of a genuine connection
between the person and the Member State.’ The final two limbs of
paragraph 1(a) of the Regulation are considered in para. [32];
‘Both these provisions allow forum actoris in exceptional cases on the
basis of habitual residence combined with other elements. That is why the
fifth indent allows jurisdiction to lie with the court of the Member State in
which the applicant is habitually resident if he or she resided there for at
least a year. Since some Member States did not find the rule set out on
those terms sufficient and bearing in mind the frequency with which the…
27 so much for the general background what follows is the crucial part;
‘The last requirement led to a discussion of establishment of habitual
residence, taking account of the situation of the spouse who returns to
the country of origin as a consequence of the breakdown of the marriage.
The existence of the connection will be assessed by the court. Although
the possibility of including a provision determining habitual residence
similar to the one in Article 52 of the 1968 Brussels Convention was
discussed, in the end it was decided not to insert any specific provision
on the matter. However, although not applicable under the 1968 Brussels
Convention, particular account was taken of the definition given on
numerous occasions by the Court of Justice, i.e. “the place where the
person had established, on a fixed basis, his permanent or habitual centre
of interest, will all the relevant facts being taken into account for the
purpose of determining such residence.’”
Other proposals were, therefore, rejected whereby it would be sufficient
for the applicant to have his or her habitual residence there for a total of
at least one year in the five years immediately before the application was
made, even when combined with nationality or “domicile”.
It is, therefore, plain that the intention was that the phrase “habitual
residence” in this context (Brussels II and now Brussels II (revised))
should have the meaning given to it in the case law of the ECJ to which I
have already referred.”
It should be noted that Mumby J., in that judgment did not refer to the
Borras report as dealing with the Brussels Convention but instead with the
Brussels II Regulations, but this error is of no consequence.
34. The same approach was taken in the Irish case C.M. v. Delgacion
Provincial De Malaga [1999] 2 I.R. 363, where McGuinness J. in a
judgment of the Supreme Court held that “habitual residence is not a
term of art, but a matter of fact, to be decided on the evidence”. This
case was followed by Sheehan J. in O’K. v. A. [2008] IEHC 243, where
Sheehan J. accepted that the assertion of the applicant that the parties
intended to settle and raise their children in Ireland where their “centre of
interests is located” were factors which:
“far outweigh any consideration to be given to the respondents assertions
that the primary residence of the family is in the USA, that both he and
the applicant and the children are citizens of the USA, that they married
in the USA and that they entered a pre-nuptial contract there, that most
of the assets are in the USA and he pays his taxed in Florida”.
35. A question crucial to the issues in this case is whether there can
be concurrent or alternate habitual residence. Mr. Durcan argued that
a number of authorities, both English and Irish, indicate that under
the Hague Convention jurisdiction that there can be alternate habitual
residences for children. While I accept that if the court were dealing with
a case involving child abduction I would be bound by these decisions, I
do not consider them relevant to the issue as to whether there can be
only one habitual residence at a time to be taken into consideration by
a court in deciding whether it should accept jurisdiction under Brussels
II bis of a case of which it is seized. Marinos v. Marinos and another
English case Monroe v. Monroe [2007] EWHC 3315 (Fam.) are both
authorities which I find to be of convincing persuasive effect for the
reasons advanced in these judgments for the above proposition and
particularly, by reason of the fact that the dynamic jurisdiction of Brussels
II bis, arising from the intervention of the operation of the principle lis
alibi pendens, absolutely compels the court to engage in a disciplined
process to ascertain with certainty where the jurisdiction lies in the event
of two courts of Member States being seised at the one time. It also
arises from the requirement that the jurisdiction conferred on the courts
of Members States by Brussels II bis is exclusive, that is to say there
is no jurisdiction arising other than that which arises under the criteria
set out in the Regulation. If the interpretation of habitual residence does
not include a requirement that, it too, must be exclusive, then the whole
working of the process ascertainment of jurisdiction under Brussels II
bis would fall into chaos and, the parties moving from one Member State
to another would be denied, the predictability and certainty in relation
to jurisdiction and consequently enforceability of court decisions which
Brussels II bis is primarily designed to provide. This is not to say that
parties may, depending on the circumstances, quite frequently change
their habitual residence over time, perhaps many times. Nor does it mean
that on occasions the facts confronting a court seised of a matter to which
Brussels II bis may relate may find itself perplexed with the difficulty
in the face of two balanced and conflicting arguments as to where the
habitual residence lies of deciding for the purpose of Brussels II bis, what
is the actual habitual residence of a party. In such a situation the absolute
imperative of Brussels II bis is that, notwithstanding the difficulties,
the court must go on to decide, one way or the other, where habitual
residence lies.
36. In approaching this case I consider that the intention of the parties
in relation to where they would settle and bring up their children for the
purpose of establishing values for them, is a significant factor within the
factual matrix to be decided in accordance with the manner suggested
by McGuinness J., in Magdalene and, that the centre of interest of the
family should be adjudicated upon the basis, inter alia, of the welfare
of the children as defined by s. 3(1), para. (b) of the 1989 Act, not as
an absolute guide, but as an appropriate model of analysis under the
categories mentioned therein, where the definition is as follows:
“Welfare” comprises the religious and moral, intellectual, physical and
social welfare of the children concerned. Ordinary Residence within the
Meaning of the 1989 Act
37. Counsel for the respondent placed considerable emphasis on the
fact that the Statute required that a party is “ordinarily resident in the
State throughout” (my parenthesis) the period of one year ending on
that date. Within that submission counsel for the respondent accepted, of
course, that holidays would be an exception. The debate between counsel
in relation to the definition of ordinarily resident centred around picking
exceptions like holidays, which could break the continuity and take away
from the satisfaction of the criterion of residence “throughout” the year,
but which would nevertheless not on a commonsense basis mean that
a person was not ordinarily resident in a particular place throughout the
year. Various examples were given rather like those given in the guidance
note used in relation to the application of the applicant for Caymanian
status, which has been described above. While that course of debate was
helpful, I consider that the court in deciding the matter should isolate the
principles upon which ordinary residence might be defined, given that
so many exceptions of a temporary nature could be found so that the
criterion of “throughout” may be satisfied, notwithstanding temporary
absences within the period of a year. The first issue to be decided is,
what does ordinary residence mean. Counsel for the applicant suggested
that the Oxford Dictionary meaning of the word “ordinary” is helpful as
it is to be defined by the use of the word “usual” and that “usual” is in
turn defined as “happening or done typically, regularly or frequently”. He
went on to say that the Oxford Thesaurus suggests “habitual, customary,
accustomed, wonted, normal, regular, routine, everyday, established,
set, familiar, typical, ordinary, average, standard, and stock”. I do not
consider that these definitions establish any further principles by which
to analyse ordinary residence. The meaning is more fruitfully analysed
by firstly taking a view in relation to how long a person is to stay at the
residence. The question should be asked is the stay to be temporary, or
is it to be for a fixed term, with occasional absences, or is it to be for an
indefinite period in to the future, with occasional absences. I consider
the test of residence for an indefinite period resolves the difficulty posed
by inconclusive analysis by way of miscellaneous examples of temporary
absences used by counsel on both sides in this case. Obviously some
type of tenure, however slight, should be associated with the ordinary
residence together with an intention to return to it indefinitely regardless
of absence. The second question of principle arises from the analysis
above in relation to habitual residence, and that is whether the ordinary
residence should have an exclusive meaning, that is to say, that there
can be only one ordinary residence at a time. I think not. I consider
that on the test of whether a person intends to return to the residence
indefinitely allows of two, or even more residences within that test,
but obviously this principle must have some limits to be decided in the
circumstances of each case defined by the question as to whether the
owner of the residence has actually settled in a place to the extent that,
the residence in the second place is actually used for nothing more than
a holiday home. I find that the description of “ordinary residence for the
time being” is consistent with this analysis.
38. In summary, the principles applicable to the term “ordinarily resident”
should be as follows:
1. The residence should be one to which a person intends to return
indefinitely despite temporary absences, and
2. There should be some tenure, however slight, of a physical premises –
a residence, and
3. The person ordinarily resident in one location has not lost that ordinary
residence by reason of his or her settling in another residence to the
extent that, the residence in which ordinary residence is claimed is now
only used as a holiday home.
This analysis puts in focus the question of how the qualification
“throughout” in the subsection might qualify the test posed by the
analysis of whether a person is ordinarily resident in a place or not, loses
such residence. Having regard to the fact that the word “throughout” in
its plain meaning does not mean that residence in the sense of actual
presence is to be for 100 % of the time, I find that the criteria posited
by the analysis must be met for 100 % of the year. Having regard to the
fact that the courts have always construed the Family Law Statutes on a
schematic basis, the conclusion I have reached above should be checked
against the Common Law tradition of establishing jurisdiction in relation
to matrimonial matters with an international element in a place which
is the “seat” of the marriage, or at least in a place having a substantial
connection with the marriage. I find that the conclusions I have reached
in relation to the question as to whether a person is ordinarily resident
throughout the year is quite consistent with that most likely traditional
schematic approach.
Conclusions
39. In relation to the contest between Ireland and Cayman, I find as
follows:
1. The family has established itself with an Irish and a Cayman residence.
2. The family intend to reside indefinitely in Ireland and Cayman on the
basis primarily of nine months approximately in Ireland and three months
in the later half of winter in Cayman.
3. The stay and setup in Cayman is not merely using Cayman as a holiday
home,
4. The centre of interest of the family is predominantly and mainly Ireland
for the following reasons:
(a) The parties decided from their engagement that if there were to be
children of the marriage, they were to be brought up in Ireland having
regard to the fact that there were special so called “family values” in
Ireland, and this intention has been practised and realised by the family
having six children all of whom were born in Ireland and were reared in
the Roman Catholic faith and attended local catholic schools in Ireland
and for the two older ones, a catholic boarding school in England, and
due to the fact that this catholic ethos of attending a catholic school
is replicated (although not as satisfactorily) when the family stay in
Cayman.
(b) The seat of the children’s interests using the analytical aid of the
definition of welfare in s. 3(2)(b) of the 1989 Act, is overwhelmingly in
Ireland, insofar as the moral, intellectual, physical and social welfare
of the children is catered for much better in Ireland than in Cayman
as evidenced by the vastly superior sporting facilities, residential
accommodation facilities (especially having regard to the cramped nature
of the last remaining apartment, now that the second is rented in the
Cayman’s), the superiority of the schools in Ireland from the religious,
moral and intellectual point of view, the superior social welfare from the
point of view of a more integrated lifestyle with the community in a fixed
way in Ireland, rather than have a beach life in Cayman for the children,
and also the prospect of being close to extended family and developing
networks of friends on a more sustainable basis in Ireland and England
where the children will probably follow the pattern of school attendance
in English boarding school of the two older girl and boy. Also by reason
of the fact that in terms of time spent with Ireland as a residence of nine
months per year, the children are predominantly Irish and their status is
of Irish citizens having been born here, unlike their status as described in
the Caymanian residential documentation as being of a right to residence
as a dependent, subject to review when eighteen.
(c) Having regard to the fact that the husband’s business is in effect
administered from Ireland in T. house at the higher management levels,
and the fact that the parents are committed as their prime responsibility
to looking after the children, the main seat of interest of the parents is
Ireland. Notwithstanding the fact that (if the world were not in recession),
the main profit making activity of the husband is based outside Ireland,
the overwhelming evidence that he was (notwithstanding his frequently
peripatetic lifestyle) a committed family man throughout the marriage and
remains so, means that his main centre of interest is Ireland.
(d) The Irish rights of residence are superior for the children as Irish
citizens and both the wife and the children have the protection of the
Family Home Protection Act 1976, on any view of the word “ordinarily
resident” in the wording of that Act.
40. Having regard to the foregoing, I find as a matter of law and of
fact that the habitual residence of the family, and each member of the
family, is Ireland and that the court may proceed on that basis to accept
jurisdiction of such proceedings as to which Brussels II relates on that
basis, insofar as indents 1 and 3 of Article 3(1)(a) of Brussels II bis are
satisfied.
Jurisdiction under the Brussels I Regulation
41. At least the maintenance aspect of the judicial separation may be
dealt with under the criterion, however, having regard to the conclusions
of this judgment in relation to law, I consider that the provision of
maintenance is dealt with by the court in exercising of the jurisdiction as
decided by Brussels II bis, having regard to the integrated nature of the
substantive law requiring provision to be made in the manner described
by me in the analysis of the law above. It is to be noted that neither the
Brussels Convention nor Brussels II bis make any claims to alter any
substantive Irish Law other than jurisdiction.
42. Insofar as there may be any residual property matters to be dealt
with outside the purview of my conclusions in relation to the integrated
nature of the exercise of the jurisdiction under the 1989 Act, under
Brussels II bis, or in relation to the alternative approach to maintenance
matters under Brussels I, I find that both parties were ordinarily resident
within the meaning of the 1989 Act in Ireland throughout the year
prior to the proceedings being initiated, and notwithstanding that this
criterion may also be met in relation to the Cayman Islands that the court
has jurisdiction (if jurisdiction is needed in this case) to deal with such
residual matters as are necessary to enable the full exercise of the powers
to make provision under the 1989 Act.
Second Main Issue
Issue in Relation to Entitlement of the Applicant to Judicial Separation
43. A most exceptional aspect of this case is the fact that the parties
corresponded either by fax, text or email on an almost daily basis
(sometimes many times a day), notwithstanding the frequent absences
necessitated by business and professional interests of the husband from
the wife. In addition there was telephone contact by landline and by
mobile, and notwithstanding silences, (which would not be uncommon
in many marriages), the parties spoke to each quite a lot and this verbal
communication (which at times could be quite revealing), was in turn
often recorded or least reflected in the written communications which
have been available to the court. It is difficult to envisage a case where
the evidence presented would be more suitable for examining the issue in
this case centring around the grounds required in s. 2(1)(b) and (f) in the
1989 Act which provide as follows:
“(b) That the respondent has behaved in such a way that the applicant
cannot reasonably be expected to live with the respondent, and
(f) That the marriage has broken down to the extent that the court
is satisfied in all the circumstances that a normal marital relationship
has not existed between the spouses for a period of at least one year
immediately preceding the date of the application.”
The hearing on this issue took place after the court had given its
decision in outline in relation to the jurisdictional issues arising under
the judgment on these topics above. This decision was given before
a judgment was given in the European Court of Justice on habitual
residence of children under Brussels II bis, and that this judgment could
not be considered. However, it is a comfort to note that that judgment
would not have altered the decision of this Court.
The Facts
44. The parties met in 1990 when the wife worked in the media and
interviewed the husband. A friendship, and then a relationship, quickly
developed between them and she gave up her employment in the media
and moved to Cayman with the husband. She was employed by the
husband, and this employment, she said, was as much to cover up for
the fact before her parents that she was actually living with her future
husband. The relationship broke up for while, and she had to go to Florida
without salary at the husband’s instigation. When they became engaged
in 1994 and decided to live in Ireland, the marriage was postponed once
at the husband’s instigation. They jointly decided on living in Ireland
and would have a family raised within Ireland, and on the choice of the
apartment in the Irish Club and the houses thereafter. When the first
child was due to be born the husband, prompted by a friend, made some
attempts to have the child born in Florida, but the wife resisted, and the
couple resolved to have all the obstetric and gynaecological aspects dealt
with in Dublin, and that position remained for the five other children.
The husband decided the pattern of movement between Ireland and the
Cayman as described heretofore, and he also decided a more or less fixed
pattern of holidaying in France in the one hotel continuously over twelve
years for the month of August. The husband mainly decided where the
family would go on other holidays outside of that pattern and was the
primary influence on the family schedule. Although he could come and
go as he pleased, he was a devoted family man by any standards, and
he turned up to be present at the birth of all of his children, although his
wife was not best pleased with his overall attention to some of the births
(and one in particular), and criticised him for it. She gave one particular
instance of this lack of attention at the birth of a child as an instance of
the insensitivity and inconsiderate nature of the husband. The wife always
received a payment on a monthly basis and this sum amounted to STG
£ 8,000 net just before the proceedings. She was, therefore, given regular
payments which were generous by any standards and were reasonably
commensurate with what in a general way is perceived to have been the
resources of the husband. Apart from her personal belongings, the wife
shared none of these resources neither did she have, in any proper sense
of the term, her own car, and then often a poor one. It is something of a
mystery to me why she never actually purchased by way of lease or hire
purchase a car from her reasonably generous monthly cash payments.
The correspondence and documentation shows with the evidence that
the husband took an interested, but domineering and critical approach
to the wife in relation to how she conducted her role as wife, mother
and manager of her household. The wife complained that even before
the marriage when the couple broke up, the husband took an interest in
what relationship she might have been in during their short separation
as a couple and pursued her to the point where she had to concede to
him that she was “lying” about having a relationship with an employee
of her husband’s while she was in Florida. The husband in evidence
accepted this and emphasised that he, like his father before him, placed
particular evidence on the necessity for persons to tell the truth. The
correspondence shows this generally critical attitude of the husband with
a particular emphasis on pointing out to the wife where she had been
untruthful or lied to him. As the children got older, it appears that when
the husband was away from home anywhere in the world, the wife was
required by him to fax to him a timetable and programme for the family
that day. The husband explained that this requirement was necessitated
by the fact that he liked to take an interest in what his children were
doing so that he could talk to them when he came home or was on the
telephone to them and he also said, (when pressed by the court, that the
practice was somewhat odd), that it was also necessitated by the fact that
there were many people in the house including children, nannies and staff
together with other people who might be involved with the stud, and that
confusion could easily arise such as caused considerable apprehension
about the danger perceived or presented by the fact that, one of the
children might have been picked up in worrying circumstances as he
waited outside school to be picked up by his carer in circumstances where
confusion meant that he was waiting longer than he should, thereby
presenting opportunities for marauding undesirables to prey on children in
such an open and vulnerable position.
45. The pre-nuptial agreement referred to earlier in the part of this
judgment dealing with the first issues was made by the parties after
the wife consulted a lawyer in the United States who advised her that,
notwithstanding that the pre-nuptial agreement might not be fair to her
and was against her interests that her bargaining position was very weak
in the event of her wishing to get married to the husband and, having
received that advice she decided to proceed with the marriage.
46. Mr. McCarthy, counsel for the wife, portrayed the marriage and
relationship between the husband and wife as having a number of
different layers. There was the good parenting layer exhibited by both
parties within the context of the husband’s very busy schedule. There
was the loving and tender layer characterised consistently throughout
the marriage by the numerous letters and written communications,
together with birthday and feast day cards of all descriptions flowing very
frequently containing the most effusive and loving terms from husband
to wife, but probably mostly from wife to husband. Sometimes these
expressions of love and appreciation took the form of an extraordinary
crescendo of birthday cards (three for one day) and also on the 57th
birthday of the husband, the wife gave a good humoured speech pointing
out his hardworking traits, devotion as a father, fairness and good
humour. On another occasion she stoutly defended him at her own
initiative, by inviting a critical press to interview her regarding her
husband’s virtues. The first two layers mentioned are not matters upon
which the wife relied to prove any ground upon which a judicial separation
could be granted. And, of course, they were heavily relied upon by the
husband to prove the contrary. The next layer isolated by the evidence
and relied upon by the wife, is the layer of continued criticism by the
husband of the wife in terms of her generally being untidy, unplanned,
untruthful and unpunctual, lacking initiative, coupled with demands
that she must do better. This layer also involved a controlling attitude
in relation to money spent by the wife over and above her periodical
payments, resulting in the wife having to reimburse the husband in
respect of petty items including a chair broken during an attack by
the husband on the wife in 2006 which had to be replaced at the
wife’s expense and also, the total failure of the husband to make any
arrangement over the years for common ownership of the family home in
any shape or form, or of any of the other significant items of wealth of the
husband. Further, there were, (what might be described for convenience)
the occurrence of sub-critical incidents of lack of concern perceived by
the wife. The most salient of these amounted to lack of attention when
the wife had her wisdom tooth out, by not collecting her personally
from the hospital, and, instead, sending one of the stud staff; getting
angry with her when she was not in a good position to prepare a cooked
turkey for American Thanksgiving Day; leaving the restaurant in Cayman
necessitating her to have to walk home after a meal; getting very angry
when the couple set off at great speed to catch a plane from America,
only to find the wife arrested and handcuffed as she drove the second
car above the speed limit and blaming her for causing what must have
been an absolutely nightmare incident for all the family at a time when
sensitivity would probably have dictated that the husband would have a
much more understanding attitude. This layer also involved numerous
bouts of anger and aggression when arguments would arise between the
parties, followed by the husband’s withdrawal and long silence, or even
absence, without explanation to the wife. Furthermore, in 2008, and the
year immediately beforehand, the insistence by the husband that the
family would go to the usually reasonably expensive hotel in France for
the August holiday, but insist that the wife would use the launderette
(albeit with the assistance of the nanny or nannies), was a criticism on
the part of the wife.
47. The final layer consisted of a number of violent incidents, the chief of
which from the point of view of relevance may be enumerated as follows:
A. An assault which resulted in what the wife claimed were some injuries
at the house occupied in the Irish Club grounds in 1998, followed by the
husband storming off and withdrawing from her for a period. This was
acknowledged by the husband and there was a following apology as well
as an apology at the hearing in this Court.
B. An attack in the office in Cayman in 2006, leading to the breaking
of the chair in the ensuing fall of either or both of the parties. (I accept
that such an attack occurred, notwithstanding the vigorous denial of
the husband but was reluctant to do so by reason of my concern about
the credibility of the wife’s allegation in the face of the tendency of the
husband to give accurate and truthful evidence. This reluctance has been
dispelled by the fact that the wife was in a position to corroborate her
evidence by showing a bank statement showing payment for an item of
furniture around that time).
C. The occurrence of what the husband described as a practical joke
(part of a pattern in the family according to him) whereby the family
when setting off from T. in Ireland for a pre-Christmas visit to Lapland
in 2007, drove off leaving the wife (who according to the husband was
characteristically late) in the house. This in itself was not directly a violent
incident but it led to the youngest child becoming very seriously upset by
this practical joke when he perceived that mother was to be left behind
and did not understand the “joke”.
D. Another violent incident, (although not directly on the person of the
wife), occurred as the husband was going to bed on Christmas Eve,
2007 and the wife had stayed up after midnight packing the Christmas
stockings, which in this case amounted to pillowcases given the size of
the toys involved. With six children all believing in Santa Claus, perhaps
for the last time, this was an important act for both husband and wife
to ensure that the children felt the love, attention and appreciation
symbolised by the Christmas stockings and were able to get the best
enjoyment thereof from their first traditional Christmas in Cayman. The
husband became impatient with the wife’s delay in going to bed as a
result of her packing activities leading him to kick the Christmas stockings
and toys out of the room and into the corridor. The wife became very
upset about this and was most concerned that the spell of Christmas
would be destroyed by the children waking up and discovering this
incident, and having the myth of Santa Claus either destroyed or badly
soured for them. In the outcome, it appears the children did not discover
this incident.
48. A continuous feature of the wife’s written and other responses to
the standard criticisms of her by the husband leading to his demands,
suggestions and entreaties that she must do better and reform, was a
general acceptance by the wife of her fault and intention to reform. If the
continued letters from the husband and memoranda of self criticism by
the couple passing between them in 2008, when they sought to rectify
difficulties in their marriage are anything to go by, both wife and husband
were singularly unsuccessful in this reforming-training process of the
wife. The correspondence and other documentation, together with the
evidence of these confrontations display (outwardly at least) continuous
responses of the wife in the style of a victim of the husband and of docility
and repentance in the face of continued pattern of criticism. An example
of this type of response which might lead to the conclusion that the wife
was an absolute victim of a strongly controlling husband, is the fact, that
after the appalling incident triggered by the arrest of the wife for speeding
in the second car going to the airport, was the fact that the wife wrote
to the husband apologising for the incident saying that it was her fault
notwithstanding that the ultimate cause arose from one of the children
refusing to leave the swimming pool on time, notwithstanding being told
to do so.
49. This victim like, docile type of response from the wife was replaced
to a significant degree, for the first time in the marriage, when the wife
took issue, verbally and in writing, with the husband’s plans to repeat the
pattern of the family holiday in August in the French hotel when the wife
threatened not to go there, unless there was a nanny engaged, queried
whether the family should attend and stay there and also demanded
that the husband would pay more attention to the rest of the family (as
before, he had spent “most of the time playing golf with the eldest son”).
This was contested by the husband, insofar as he said that he had only
played nine holes at any stage with his son and this would not have lasted
any more than two hours or so. Strains on the victim-docile pattern of
communication between husband and wife also arose in relation to the
organisation of the trip to Lapland with the children just before Christmas
2007 and, the wife was left in a position where she was justified in having
extreme doubts as to whether she might be going or not.
50. In 2007, the Christmas proceeded in traditional style in Cayman with
some difficulty, but by that stage the wife was increasingly reflecting on
her lack of satisfaction with the relationship and, equally, the husband
had begun to express a desire for what could be described as a trial
separation. The husband had arranged to bring the eldest son back to
England via Ireland to his secondary school at A., in early January. The
intention was that the wife would remain in Cayman while the husband
attended to this and other business on the Irish side of the Atlantic.
He had to make arrangements for the administration or probate of his
father’s estate, and he also had concerns about accommodation for his
mother and looking after the English property, which he had acquired
close to the son’s school. He explains that as a result of the death of his
father in 2007, and difficulties with his mother’s accommodation, he had
come under a great deal of strain.
51. When the husband left in early January, communications had been
poor between the parties, and afterwards they did not resume the same
frequent or effusive pattern as before. Instead, the husband made
telephone calls to the children in the Cayman’s and did not speak to
the wife, and ultimately the husband in a very long and in ways heart
rending letter, informed the wife of his interest in obtaining a divorce.
The relationship continued with the husband ultimately returning and,
indeed, having a number of holidays with the family and the children and
on occasions with the wife alone where good personal and sexual relations
ensued between the wife and the husband, and in ways the responses
of the wife continued in the docile victim hood mode, but underlying the
communications was a new assertiveness of the wife wishing to change
things. The couple returned to Ireland from the Cayman Islands in mid
March so that the children could go back to school.
52. I consider that crucially in this case there was a watershed in the
relationship between the parties on the receipt by the wife of the letter
indicating an interest in divorce when she was alone with the five children
in Cayman. When asked by the court whether there was a taboo between
the couple in relation to even mentioning the issue of divorce between
them beforehand, the husband readily conceded that there was such a
taboo. The court may easily infer that the letter mentioning divorce came
as an absolute bombshell to the wife. The wife claimed in evidence that
after this time she became intent on protecting her situation by such legal
methods as were appropriate and, securing her future for herself and her
children in the face of the divorce demand by her husband. She explains
the subsequent elements of the same old effusiveness and docility in
her letters and memos with her husband (many of which had to do with
reconciliation of the couple and acceptance of blame mutually for their,
(by now fraught) marriage), by saying that this was a hypocritical course
followed by her to keep matters on an even keel until she could protect
her situation, but that she clearly had decided herself to separate and
take whatever steps she knew to “end the marriage”. She also explained
the sometimes very passionate and enthusiastic sexual intercourse and
social encounters between herself and her husband up to the end of April,
and even thereafter, on the same basis and even suggested to the court
that one such incident of sexual intercourse was hypocritical when it
occurred in June of 2008. (After the separation proceedings had issued).
53. The husband took issue with this version of events from the wife and
asserted that, notwithstanding their difficulties the couple were up to
eight days prior to the issue of the proceedings, on the 30th April, 2008,
in a normal marriage which had its ups and downs, in the course of an
active reconciliation process. He laid particular emphasis on the fact that
over the whole period of January, 2007 to May, 2008 the family had no
less than eighteen holidays at considerable expense, some of which were
holidays where husband and wife spent an enjoyable time alone with each
other. He produced what is best described as a handwritten spreadsheet
giving details of these holidays from his very well kept records and, this
spreadsheet was not challenged on behalf of the wife.
54. On or about the 30th April, 2008, when the husband was away (it
appears in England), the wife invited another man (hereinafter called
“the other man”) to her table when out dining with her mother. They
kissed almost immediately in the restaurant, a friendship ensued which
continued to the date of hearing where the wife, although not living
with the other man, assisted him with a significant sum of money for
his business, apparently without expectation or hope of repayment and
where the wife employed various stratagems to conceal the continuation
of this adulterous affair, notwithstanding that it had been discovered and
identified by the husband at an early stage as a result of his characteristic
zeal, and no doubt driven by what must have been a general and hurtful
shock for him to discover this sudden turn of events which had been
uncharacteristic of his long faithful and loving wife. The affair with the
other man continues up to the date of the hearing. The coyness and
lack of candour of the wife with the court when it enquired during the
hearing as to whether the affair with the other man continued, which
was not justified by the uncontested facts subsequently uncovered by
the husband, has led the court to adopt a cautious approach to the wife’s
evidence, and will, in drawing its conclusions in this case, rely mostly on
evidence corroborated by or supported by further documents or admitted
facts.
55. Such an approach is necessary by reason of the stark contrast
between the cases of the husband and wife and credibility issues arising
from the issue raised by the husband in his notice of motion of the
28th January, paragraph 1 already referred to earlier in this judgment
regarding the jurisdictional issues, insofar as he asserts that there was
a normal marriage and that the wife filed for judicial separation on the
8th May as a direct resulting of meeting the other man on the 30th April,
2008, and becoming immediately and totally besotted with him. In this
context it is important to revisit the wife’s application for Caymanian
status, as the husband placed emphasis on this application from the
point of view of attacking the wife’s credibility, in saying that she was
asserting two conflicting claims in relation to ordinary residence and had
misrepresented the status of her residence to the Cayman authorities
for the purpose of obtaining Caymanian status, and that additionally
she referred to her residence in Ireland as living “on the family estate”,
whereas she referred to her residence in the Cayman as in the “family
home on Cayman”. I do not consider that such credibility doubts arise
from the application for Caymanian status by reason of the fact that,
her residence in Ireland was, in fact, on the family estate, which was a
completely open and frank disclosure to the Caymanian authorities in
relation to this aspect, and, in addition, she disclosed her long residence
in Ireland to them. Her obtaining Caymanian status was obtained
primarily by her residence entitlement and certificate available at the
time, and also by reason of her husband’s long residence in Cayman and
his Caymanian status which, it must be said, are objectively genuine, but
judged by his own particular standards seeking to attack the credibility of
the wife are ambivalent enough insofar as he did not spend a great deal
of time in the Cayman’s, especially in the twelve months leading up to the
issue of separation proceedings in this case.
56. The parties still live as a general rule with their children under
one roof at T., but there is no doubt that they are living apart within
the meaning of the 1996 Act. The court has continuously during the
course of the hearing enquired about the welfare of the children in
such a situation, and is glad to have been continuously assured that
the welfare of the children is of concern to both parents, and that it
is being cared for without the necessity of intervention by the court
and that expert professional assistance is availed of by the parents in
relation to this aspect. The state of affairs in relation to the children is
to be welcomed, as it is the obligation of the court in the first instance
whenever matrimonial proceedings commence to make enquiries in
relation to the welfare of children so that timely steps may be taken,
even on the initiative of the court to ensure that they are not unavoidably
damaged by the litigation and process of separation and/or divorce.
The Law
57. Section 2 of the Judicial Separation and Family Law Reform Act 1989,
provides as follows:
“2. – (1) An application by a spouse for a decree of judicial separation
from the other spouse may be made to the court having jurisdiction to
hear and determine proceedings under Part III of this Act on one or more
of the following grounds:
(a) that the respondent has committed adultery;
(b) that the respondent has behaved in such a way that the applicant
cannot reasonably be expected to live with the respondent;
(c) subject to subsection (2) of this section, that there has been desertion
by the respondent of the applicant for a continuous period of at least one
year immediately preceding the date of the application;
(d) subject to subsection (2) of this section, that the spouses have 3
lived apart from one another for a continuous period of at least one year
immediately preceding the date of the application and the respondent
consents to a decree being granted;
(e) subject to subsection (2) of this section, that the spouses have lived
apart from one another for a continuous period of at least three years
immediately preceding the date of the application;
(f) that the marriage has broken down to the extent that the court is
satisfied in all the circumstances that a normal marital relationship
has not existed between the spouses for a period of at least one year
immediately preceding the date of the application.”
58. Section 4 of the 1989 Act provides as follows:
“4. – (1) Where the spouses have lived with each other for more than
1 year after it became known to the applicant that the respondent had
committed adultery the applicant shall not be entitled to rely on that
adultery for the purposes of section 2 (1) (a) although that adultery may
be one of the factors that the applicant may rely on for the purposes of
section 2 (1) (b) together with other matters.
(2) Where the applicant alleges that the respondent has behaved in such
a way that the applicant cannot reasonably be expected to cohabit with
him but the spouses have cohabited for a period or periods after the
date of the occurrence of the final incident relied on by the applicant and
held by the court to support his allegation, such cohabitation shall be
disregarded in determining for the purpose of section 2 (1) (b) of this
Act whether the applicant cannot be reasonably expected to live with the
respondent if the length of the period or of those periods of cohabitation
together was or were 6 months or less.”
59. The case T.F. v. Ireland, the Attorney General and M.F. [1991] 1 I.R.
at p. 321 is helpful in relation to providing a guide as to what a normal
marital relationship involves in this jurisdiction. The judgment of Murphy
J. in the High Court in that case isolated two pertinent aspects which
are well summarised in the head note of the report of his judgment as
follows:
“7 … that the essential ingredients of a valid marriage and the elements
which must continue to exist to enable it to be described as a functioning
marriage as opposed to one which, in the words of s. 2, subs. 1(f) had
“broken down” were difficult to define and would exist in varying degrees
in different marriages, but that those essential elements must include
the physical capacity to consummate the marriage and the creation of an
emotional and psychological relationship between the spouses, and
8. that while the word “break down” might be appropriate to describe a
variety of conditions or problems within marriage, the Oireachtas must
be presumed to have intended a constitutional meaning, so that “break
down” must be limited in its application to a break down which involves
the loss of an essential ingredient to the extent as stated in subs. 1(f)
that a normal marital relationship had ceased to exist.
9. That it must be recognised that the consent of either party that the
continuation of the marriage was an essential ingredient thereof as the
implacable opposition – however unreasonable – of one or other of the
spouses to its continuation must destroy the fundamental relationship.”
60. In considering this case I was conscious of the approach taken by Mr.
McCarthy in his submissions highlighting the fact that the latter two layers
of the relationship as analysed by him and described in this judgment
highlighted the lack of parity of esteem, and equality which has been
used by the courts as a critical standpoint to examine the adequacy
of provision in judicial separation and divorce cases after decisions in
White v. White as followed by Irish cases such as the Supreme Court
judgment in T. v. T., and this approach which has been summarised in the
Charman v. Charman (No.4) judgment has “banishing discrimination” is
a development which in statutory and judicially clarified law has emerged
since the judgment of the High Court and Supreme Court since T.F. v.
Ireland and the Attorney General and M.F. There is no doubt that having
regard to the manner in which the courts now approach provision for each
spouse, having regard to equality, or at least a departure from equality
on the basis of justifiable reasons, might prompt the argument that the
continuation of a marriage such as that between the husband and wife
in this case without the wife progressively obtaining a paper title to a
significant amount of the assets of the family, would indicate that the
marriage was not a normal marriage and that a new standard arises
over time. The argument may be made that against the background
of the constitutional pledge to protect the institution of marriage is
anomalous and discriminatory for dependent spouses to have to wait for
the intervention of the court in judicial separation or divorce to assert
their right to equality and “banish discrimination”. Having considered
this view and weighed it in the light of Mr. McCarthy’s submissions, I find
that notwithstanding its logic it is itself contrary to a very fundamental
aspect of a normal marriage which is the consent of the parties to engage
in cohabitation, characterised by continuous negotiation, co-existence
and compromise, in their widest possible definitions. This is not to say
that if a spouse realising that they are giving more and more into a
marriage where there is no sign of the actual sharing of family wealth
and resources, that they may not be justified in demanding that such
adjustments would take place in property owning which would reasonably
justify their withdrawal of consent to the marriage. Such an event, if
followed through by clear indication of lack of consent for the requisite
period of one year prior to initiation of proceedings would as in many
other situations, too numerous to envisage, lead to establishment of
a ground under s. 2(1)(f) of the Act of 1989. To take the other view
initially posited by me would actually be undermining marriage insofar
as spouses could never really know where they stood at any particular
time, and would lose the opportunity to engage in a fundamental aspect
of marriage, which is negotiation and compromise.
61. It is clear from the Act that the wife in this case cannot rely on her
own adultery to ground her claim, nor does she do so. However, the
provisions of the Act in relation to adultery are helpful in relation to
analysing the law in regard to the treatment of violence as a ground
justifying a claim that the applicant cannot reasonably be expected to
live with the respondent under s. 2(1)(b). In this context while s. 4 of
the Act of 1989 does not allow of the old fashioned condonation principle
in relation to adultery, it allows for a fade factor to come into play under
subs. (1) after one year, the adultery has come to the knowledge of the
applicant so that adultery may not be relied upon, but it does add the
proviso that the adultery may be one of the factors that the applicant
may rely on for the purposes of s. 2(1)(b) together with “other matters”.
I consider that while the statute does not make specific provision for it,
such a proviso may be applied to occurrences of violence such as the
1998 occurrence, insofar as time has ruled them out as a direct ground
for the judicial separation, nevertheless they are to be taken into account
as the occurrence of even one incident of violence considerably breaks
the seal of trust and confidence in the marriage, and this breakage can
relapse with the occurrence of another incident of violence or traumatic
event which affects the manner in which the spouses are adversely
affected by them, may reasonably be expected to react.
Conclusions
62. Notwithstanding the fact that I accept that there were extensive
and obvious elements of controller/victim relationship between husband
and wife in the marriage from before and during the marriage, that
the wife consented to such a relationship and she herself controlled it
by what almost became a ritual of acceptance of guilt and purpose of
amendment so that she could humour her husband and encourage him
to be in many respects the good father, provider and family man that
he was. I have seen the demeanour and presentation of the wife while
giving her evidence, and neither from that nor any of the evidence,
was there any indication that the wife was psychologically adversely
affected by her apparent victimhood. If it were otherwise, my conclusions
hereinafter following might well be different. Therefore, the wife does not
succeed on ground 21(b). I find that the occurrence of the letter from the
husband raising divorce when he had absented himself on what can be
regarded as a trial separation from the Cayman leaving the wife on her
own in cramped conditions looking after five other children, coupled with
the outbreak of a violent incident as described on Christmas Eve was a
triggering event, which set off the wife’s defences to consider radical ways
of altering her marriage and that certainly taking the period from the
Lapland incident right through to the divorce letter, that the respondent
has behaved in such a way that the applicant could not reasonably be
expected to cohabit with him so that the criteria in 2(1)(b) is met.
63. I find that the earliest date at which one might possibly take the view
that the consent of the wife to continue in the controller/victim docility
relationship was just before the holiday in the French hotel, in or around
July, which does not give the requisite period of one year for the lack of a
normal marital relationship to set up the ground of 2(1)(f). In this regard,
I agree with Mr. Duncan’s submission. In any event, I do not think that
the new assertiveness then exhibited amounted to withdrawal of consent.
64. There was, and continues to be, an adulterous relationship
between the wife and the other man, but this is not the reason why the
proceedings were initiated, as although there were attempts to reconcile
and actions of reconciliation between the parties after the triggering
events in the period hereinbefore described the fundamental problems
of the marriage such as the controller/victim docility relationship and
the lack of sharing of wealth and resources had not been resolved. The
question as to whether there was a rush to jurisdiction (which was never
actively canvassed) is irrelevant once the proofs are met under s. 2(1)(g).
65. Section 4, subs. (2) of the 1989 Act deals with the situation such as
occurred in this case where the parties continued to cohabit for a period
of less than six months after the triggering event hereinbefore described
where such cohabitation does not disentitle the applicant from relying on
s. 2(1)(b). I consider that within the category of cohabitation envisaged
by s. 4(2) is the type of cohabitation which was punctuated by efforts to
reconcile sexual relationships (however sincere or hypocritical on the part
of the wife), or by other various indicia of a normal marriage.
66. The other events in the “final layer” of the relationship outside the
six month period, while not qualifying as formal proofs in themselves are
nevertheless dark shadows brought into play again by events within the
critical six months to affect positively the reasonableness of the question
in issue.