R.C. (plaintiff) v C.C. (defendant).
Divorce - Proceedings brought pursuant to article 41.3.2 of the Constitution - Whether The court has jurisdiction - If so, whether such jurisdiction exercisable - Matters of which the court must be satisfied before granting the decree - Constitution of Ireland 1937. articles 34.3.1, 41.3.2.
The High Court (before Mr Justice Barron); judgment delivered 17 January 1997.
THE High Court is, for the purposes of a dissolution of marriage, a court designated by law and the jurisdiction granted by the provisions under article 41.3.2. may he exercised by the Court. There is nothing in that provision which limits the powers of the High Court to exercise the jurisdiction created nor is there any statutory provision in force based upon any other provisions of the Constitution which take away such jurisdiction.
The High Court so held in finding that the provisions of the Constitution had been complied with and in granting the plaintiff a dissolution of his marriage.
Gerard Durcan SC and Arin Kelly for the plaintiff Inge Clissman SC and Sabrina O'Toole for the defendant.
MR JUSTICE BARRON said that the plaintiff sought a decree of dissolution of marriage. The parties had been married for a considerable period of time and there were three children of the marriage, all adult. The proceedings were brought pursuant to the provisions of article 41.3.2 of the Constitution notwithstanding that the Family Law (Divorce) Act 1996 was not yet in force. The first question which had to be determined was whether that provision created a jurisdiction and, if so, whether it was exercisable by the court.
Mr Justice Barron said he had had the benefit of a written submission on behalf of the plaintiff and also very careful oral submissions in relation to both these matters. It was submitted that there were two instances in the Act itself which indicated that the Act is intended to regulate a jurisdiction conferred by the Constitution. First, Mr Justice Barron said that the long title to the 1996 Act commences: "An Act to make provision for the exercise by the courts of the jurisdiction conferred by the Constitution to grant decrees of divorce".
Secondly, the power to grant a decree of dissolution contained in section 5 of the Act was stated to be in exercise of the jurisdiction conferred by article 41.3.2 of the Constitution.
Mr Justice Barron said that from these two references and from the terms of the relevant provision of the Constitution itself, it seemed clear that a jurisdiction to grant a decree of dissolution of marriage derives from the Constitution and not from the statute.
Mr Justice Barron said that the court had, under article 34.3.1 of the Constitution, a full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal. Whether this jurisdiction can be limited had been considered in cases where legislation had conferred jurisdiction exclusively on Courts of limited jurisdiction. In Tormey v Ireland [1985] IR 289, the plaintiff sought to be tried on a criminal offence in the High Court not withstanding that under statute law the jurisdiction to hear the matter was conferred upon the Circuit Court. In the Supreme Court, it was held that the jurisdiction of the High Court could only be cut down by the Constitution itself. At page 297 Mr Justice Henchy said that, save to the extent required by the terms of the Constitution itself, no justifiable matter or question may be excluded from the range of the original jurisdiction of the High Court. It was held in that case that the full original jurisdiction of the High Court was not ousted in the circumstances since its supervisory jurisdiction remained intact.
Mr Justice Barron said that in an earlier case in the High Court, B v R [1984] IR 296, where certain family law matters were apparently excluded from the jurisdiction of the High Court, Mr Justice Gannon had expressed a similar view at page 308 as follows: "In my view, it would be inconsistent with the provisions of article 34.3.1 (as interpreted by the Supreme Court in R. D. Cox Ltd v Owners of M.B. Fritz Raabe) if there could be no jurisdiction in any court in such matters unless and until a jurisdiction was conferred by enactment of the Oireachtas. From the amplitude of jurisdiction with which the High court is invested by Article 34 of the Constitution, it follows that the Oireachtas does not add to or increase the jurisdiction of the High Court by legislation."
Article 41.3.2 of the Constitution provides as follows:
"A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that
1. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
2. there is no reasonable prospect of a reconciliation between the spouses,
3. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law,
4. any further conditions prescribed by law are complied with."
Mr Justice Barron was satisfied that, having regard to the precedents to which he had referred, the High Court was for the purposes of this provision of the Constitution a court designated by law and that the jurisdiction granted by those provisions may be exercised by the court. There was nothing in that provision which limited the powers of the court to exercise the jurisdiction created nor was there any statutory provision in force based upon any other provisions of the Constitution which took away such jurisdiction.
Mr Justice Barron said that the constitutional provision set out the matters upon which the court must be satisfied. Evidence had been given by both husband and wife, the former being taken in the main on commission. From this evidence, he was satisfied that the parties had been married. Following their marriage, they lived in several countries for several years until they returned to settle in the State. Having lived together for a time, they separated and the husband went to live with another woman by whom he had had a daughter. The parties had lived apart continuously since then up to the date of the issue of these proceedings and since that date. They lived close to each other without bitterness on either side. The wife had come to terms with the situation that her feelings towards her husband were not reciprocated. Neverthless, there was no reasonable prospect of a reconciliation between them. The elder daughter of the parties lives with her mother, the younger daughter lives on her own in accommodation provided by her mother. The son of the marriage rents accommodation from his mother in one of the properties to be transferred into her name, which had been purchased in equal shares by the parties to the proceedings. The plaintiff carries on a professional practice from part of the same premises. Each of the children is in employment. There was no evidence that any are in need or have any special requirements for their welfare. The relationship between the plaintiff and his son is good. Unfortunately, his daughters resented his treatment of their mother and had not spoken to him since he ceased to live with her.
Mr Justice Barron said that the family assets comprise three properties, two in the State and one abroad. The latter was bought entirely by funds the property of the wife, but put into joint names. The former were both put into the sole name of the husband, one having been bought entirely with the wife's own monies and the other by equal contributions from each spouse. The parties each have substantial assets in trust funds; those of the wife being more than double those of the husband. It was proposed to transfer all three properties into the name of and beneficial ownership of the wife. The value of those properties would add approximately 75 per cent to the current value of the wife's trust funds. The value of that portion of such property as was purchased with the husband's monies would if aggregated with the value of his other assets amount to approximately 25% of his total assets. He also proposed to transfer approximately one third of his remaining assets equally between his three children. Mr Justice Barron was satisfied that these provisions' were proper in the overall circumstances of the family.
Mr Justice Barron said that it was to be noted that the provisions of clause 3 of Article 41.3.2 of the Constitution differ from the corresponding statutory provision. The former requires that such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law. The latter provides that such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family.
Mr Justice Barron said that since the jurisdiction invoked was that contained in the Constitution and not that amplified by the Act, it was necessary for the Court to consider the position of the children. While he did not purport to determine that nondependant children should necessarily have provision made for them, he was satisfied that in the particular circumstances of the present case it was proper that certainly the two daughters of the marriage should have provision made for them in the interests of the family as a whole. There were no further conditions prescribed by law currently in force which must be complied with as a precondition to the exercise of this constitutional jurisdiction.
Mr Justice Barron said that while the wife did not wish to be divorced from the husband, she had made no effort to oppose the proceedings other than to ensure that proper provision should be made in accordance with Article 41.3.2. This gave rise to consideration as to whether this might amount to collusion. He was satisfied that there had been none and that the evidence given before the court had been truthfully given.
In conclusion, Mr Justice Barron was satisfied that the provisions of the Constitution had been complied with and that this was a proper case in which an order for the dissolution of the marriage should be made.
Solicitors: Lavery Kirby & Co (Dublin) for the plaintiff; F. H. O'Reilly & Co (Dublin) for the defendant.
