Judge concludes marriage subject to law and State

The High Court has rejected a claim by a father of four that neither the State nor courts are entitled to play any role - whether through family law or judicial separation proceedings - in regulating his Roman Catholic marriage.

Had the judicial review proceedings initiated by the man, assisted by a representative of the National Men's Council, been successful, many other family law cases could have been halted by others bringing similar actions, the court was told.

Mr Justice Roderick Murphy yesterday granted an application by the man's wife to set aside an earlier High Court order, granted to the man last July on an ex parte (one side represented only) basis, permitting him to bring a judicial review challenge aimed at overturning orders made against him in Circuit Court judicial separation proceedings.

The man refused to participate in the Circuit Court proceedings, brought by his wife under the Judicial Separation 1989 and Family Law Reform Acts, on grounds that only the Roman Catholic Church could regulate or suspend his Catholic marriage.

He sought a declaration that the Circuit Court acted improperly in issuing an attachment warrant compelling him to be brought to court so that he might act, even against his religious conscience and free will, in judicial separation proceedings.

His judicial review proceedings were brought in a bid to quash various orders made in the Circuit Court proceedings and the case in that court was stayed pending resolution of the High Court action.

The motion by the man's wife to set aside the leave for the judicial review and to lift the stay on the Circuit Court action was heard partly in private by Mr Justice Murphy earlier this week.

In the case, the State rejected the claims that neither the courts nor Oireachtas could regulate Roman Catholic marriages.

In his judgment yesterday, the judge found the man's claim disclosed "no reasonable cause of action" and was "untenable".

Rejecting the claim that the courts have no jurisdiction in relation to Roman Catholic marriages, he said a constitutional court could not entertain such an argument which seemed to attack the court, the law and the Constitution itself.

A finding that the courts had no jurisdiction in relation to Roman Catholic marriages would deprive a party to such a marriage of any assistance from the courts and would also deprive them of protections under the Constitution and the European Convention on Human Rights, he held.

The State, he noted, had intervened in the proceedings only to uphold the law and the civil matrimonial scheme and had not impugned the man's motives or sought to get involved in the matters between the man and his wife.

The judge also found that the action was brought outside the statutory three-month limit for judicial review as leave was sought last July although the disputed Circuit Court order was made in November 2005.

He made an order directing that the man pay his wife's legal costs but made no order in relation to the State's costs.

The judge said he hoped there was now some clarity in relation to a "novel proposition" relating to the jurisdiction of the courts in marriage cases.

Earlier, Mr Justice Murphy noted that the man, who was representing himself, had attended only the first day of the hearing when he was assisted by three friends, including Roger Eldridge, chairman of the National Men's Council of Ireland.

The man had not attended the second day and nor did he attend for judgment yesterday.

The judge noted a faxed letter was sent to the man's wife's solicitor at 1.42am on Thursday, before the second day's proceedings, which included a note from a medical practitioner, who was not the doctor normally attended by the man, to the effect that he was unfit to attend court "at present".

This fax did not constitute a notice to the court, he said, and it was not proper that the court was not notified.

The judge added that he had considered whether to adjourn the matter but had concluded no useful purpose would be served by that.