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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> K. (C.) v. K. (J.) [2004] IESC 21 (31 March 2004) URL: http://www.bailii.org/ie/cases/IESC/2004/21.html Cite as: [2004] 2 ILRM 168, [2004] IESC 21, [2004] 1 IR 224

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THE SUPREME COURT

NO. 100/2003

Denham J.

Murray J.

McGuinness J.

Fennelly J.

McCracken J.

IN THE MATTER OF JUDICIAL SEPARATION

AND FAMILY LAW REFORM ACT, 1989,

IN THE MATTER OF THE FAMILY LAW ACT, 1995

AND IN THE MATTER OF SECTION 16 OF THE

COURTS OF JUSTICE ACT, 1947

BETWEEN/

C.K.

APPLICANT

AND

J.K.

RESPONDENT

AND

F.McG.

NOTICE PARTY

[Judgments delivered by Denham J., Murray J., McGuinness J. & Fennelly J.; McCracken J. concurring.]

Judgment delivered on the 31^st day of March, 2004 by Denham J.

1. A Question of Law

This is a consultative case stated from His Honour Judge Patrick McCartan, Judge of the Circuit Court assigned to the Dublin Circuit, pursuant to s. 16 of the Courts of Justice Act, 1947 and Order 65 of the Rules of the Circuit Court 2001, on the application of C.K., the applicant, referring a question of law to the Supreme Court. The matter came before the Circuit Court on 22^nd day of January, 2003 by way of a preliminary issue in proceedings brought by C.K., the applicant, seeking a decree of judicial separation with ancillary reliefs. J.K., the respondent, has filed a defence and counterclaim in which he seeks a declaration of nullity due to incapacity on his part because of his prior valid marriage to F.McG., the notice party.

2. Facts

The facts, as proved or admitted or agreed and as found by the Circuit Court, were as follows:

"(a) The respondent married for the first time on the 7^th September, 1968 to F.McG. There was one child of the marriage who was born on the 29^th May, 1969. In or about 1972 the marriage having failed, the respondent moved to live in a flat in Ranelagh. Ms. McG., a school teacher by profession in a provincial town does not appear to have looked to the respondent for maintenance and to have survived by her own means after the parting.

(b) In 1979 the respondent met the applicant in Dublin for the first time and they started to date. Shortly after their meeting the respondent moved to work in the same company as the applicant on the north side of the city. His work there involved him being trained in the manufacture of … and for these purposes he was sent on training courses to the company's parent outlet in the State of Ohio in America.

(c) There, the respondent met socially with an attorney a certain Mr. James McCorkle who on learning of the respondent's status and desire to be divorced, assured him that he could secure such a divorce for him without any difficulty and despite the absence of the necessary legal requirements of residency and other matters. Documents were prepared based on incorrect information relating to an address of residence and time spent in Franklin County and the State of Ohio. The respondent travelled to Ohio to attend the hearing of the application and the divorce was secured as easily as Mr. McCorkle promised.

(d) During all this time the applicant and the respondent were courting and working together. The notice party indicated at the hearing that she had received notification of the lodging of the application for the divorce in Ohio in the month of November, 1981 and decided to ignore it as affairs with the respondent had long been settled. She then got notice in the month of March, 1982 of the making of the order for divorce and was amused by the reference to child support which she confidently and correctly anticipated would amount to nothing in reality.

(e) The respondent took two training trips to Ohio, each lasting three to four weeks at most, both in 1981 in the months of May and November, staying in each occasion in a local commercial hotel. He then returned in March, 1982 for the final hearing of the application and the granting of the divorce.

(f) The question of marriage between the applicant and the respondent arose and the respondent was seeking a means of clearing the way for the union. The applicant was not involved directly in the attempts by the respondent to clear the way for their marriage. The applicant had sought the divorce document and on its reading it seemed to her that a judge of capable authority, who had the attendance of the respondent in court and was satisfied of all legal requirements, had granted the divorce sought.

(g) The couple proceeded to be married at the registry office in Dublin on the 25^th March, 1983. The application to the registrar in Dublin was on the basis that the respondent was a bachelor. The marriage was solemnised and no impediment or reservation arose during the notice application or the marriage ceremony.

(h) Having married in March, 1983 the couple stayed together as husband and wife for close on seventeen years during which time they had two daughters born on the 24^th day of April, 1987 and the 13^th day of April, 1991. A family home was purchased in joint names at … in the county of Dublin and the parties continued to reside there with the two children pending the determination of these proceedings."

3. Consultative Case Stated

A written judgment was delivered by the Circuit Court on the 29^th January, 2003. At paragraph 7 of the consultative case stated the findings of the Circuit Court are set out as follows:

"I have found that in this case, given the particular facts of the case, justice can only be achieved by the use of estoppel whereby the respondent would not be allowed challenge, at this remove, the validity of his original divorce. The particular facts that apply include:

(a) The respondent's original spouse, Ms. McG. was aware of the making of the application and did not object.

(b) The respondent's original spouse, Ms. McG. was not adversely affected by the making of the order of divorce.

(c) The child of the respondent's marriage to Ms. McG. is not adversely affected by the continued existence of the divorce.

(d) If the respondent was to apply for the dissolution of his first marriage today he would be entitled to a divorce in this jurisdiction without any difficulty. At the time of the granting of the Ohio divorce, such a remedy was not permitted in this jurisdiction.

(e) The respondent has enjoyed the benefits and the status of being both the spouse of the applicant for seventeen years and the father of two children of that marriage.

(f) The applicant and her two children would suffer significant diminution of status and reduction of financial rights should the validity of her marriage be undermined.

(g) No collusion or complicity can be laid at the feet of the applicant in the application for a licence to marry the respondent."

He held:

"I believe that justice between the parties can only be achieved by prohibiting or estopping the respondent from attacking the validity of his divorce and by definition the validity of his marriage to the applicant. However, given the law as stated, I accept that the concept of estoppel as a remedy, well suited to offer a solution in this case, is a judge made and developed principle. I believe it is preferable for the parties to this action that prior to a final determination of the case that the Supreme Court be consulted on this issue."

4. Question for the Supreme Court

The opinion of the Supreme Court is sought on the following question:-

"Whether I am entitled to hold in these proceedings as a matter of law, having regard to the findings of fact made by me, that the respondent is estopped from denying that he is married to the applicant."

5. Submissions

Mr. Gerard Durcan, S.C., counsel on behalf of the applicant, submitted that it is possible by using the doctrine of estoppel to bring about a just result as between herself and the respondent while not altering the status of any other parties to this action. In asking this court to adopt such an approach the applicant did not seek that the court should ignore the facts rather that the respondent, because of his conduct, should be denied a specific remedy or defence which would normally flow from those facts. It was submitted that to do otherwise is to ignore the fact that the respondent deceived the applicant, went through a solemn ceremony of marriage with her, and lived with her as man and wife for seventeen years during which time they had two children. Counsel advanced the submission that decrees of divorce, nullity and judicial separation were decrees in personam and that consequently estoppel could be applied.

Mr. Gerard Hogan, S.C., on behalf of the respondent, submitted that the decision in Gaffney v. Gaffney [1975] I.R. 133 precludes the operation of the doctrine of estoppel in relation to marital status. It was submitted that there were no compelling reasons why Gaffney should be overruled. Further, that if it were overruled the operation of the doctrine of estoppel in this area would be fraught with difficulty and enhance the potential for injustice and anomaly. It was also submitted that the respondent should not be estopped from asserting and establishing the invalidity of the Ohio divorce which has the consequence that he is shown to be not validly married to the applicant.

Ms. Mary O'Toole, S.C., counsel on behalf of the Attorney General, addressed the submissions on behalf of the applicant that decrees of divorce, judicial separation and nullity are decrees in personam. Counsel submitted that such decrees are judgments in rem and that thus there could be no personal estoppel, that decrees of divorce and nullity are directly related to status and that judicial separation decrees are grounded on the marital status of the parties. Reference was made to Gaffney and it was submitted that the court should continue to apply the law stated by Walsh J. Counsel adopted the submissions made on behalf of the respondent. Counsel also stressed the public interest in having certainty in the law on marital status.

F.McG., the notice party was not legally represented at the hearing before this court. She informed the court that her financial situation is such that she is not in a position to meet the cost incurred in a two day hearing in the Supreme Court. While both the applicant and the respondent obtained free legal aid, she did not. The notice party was in court while this matter was at hearing and she offered her cooperation. However, as a personal litigant, she made no submissions to the court.

6. Non Recognition of Ohio Divorce

It was accepted that the Ohio divorce would not be recognised in this State in 1982 or now. The consequence follows that the purported ceremony of marriage in 1983 was also invalid. It is in these circumstances that the issues in this case stated arise, specifically as to whether the respondent may be estopped by his own conduct from asserting the invalidity of the Ohio divorce.

7. Issues

There are several issues raised by the question posed for the court. The first issue is whether the question for the court raises matters determined in Gaffney v. Gaffney [1975] I.R. 133. If it is decided that it does, then the next matter for consideration is whether there should be a departure from Gaffney. Finally, the question for the court falls to be decided.

8. Estoppel and Marital Status

The first issue, then is whether the question for the court raises matters determined in Gaffney. That case arose in circumstances where the plaintiff married her husband in 1940 in Ireland and lived in Ireland with her husband and children. In 1957 the plaintiff petitioned the High Court in England for a decree of divorce, representing that she and her husband were domiciled in England. In 1959 the English High Court granted a decree dissolving the marriage. Subsequently the plaintiff improvidently surrendered certain rights conferred on her by the English Court. The husband went through a ceremony of marriage with the defendant in 1959 and died intestate in 1972. In 1973 the plaintiff claimed in the High Court in Ireland a declaration that she was the lawful wife of the husband on the date of his death. The plaintiff adduced evidence to establish that she and her husband were domiciled in Ireland at the time of the divorce proceedings, that she had never wanted a divorce and that she had acted under duress from her husband. The High Court (Kenny J.) ordered the making of the declaration sought by the plaintiff. He held that only the court of domicile of the husband and wife could have jurisdiction to dissolve their marriage, that the court could investigate the circumstances to see if the English Court had jurisdiction, that the plaintiff and defendant were domiciled at all times in Ireland, accordingly the English Court had no jurisdiction to grant the divorce, that the plaintiff was not estopped from denying the validity of the marriage, that the divorce had been procured by fraud and duress. An appeal to the Supreme Court was disallowed. Walsh J. stated:

"The paramount issue in the present case is the status of the plaintiff and her husband at the date of his death. The plaintiff was either his wife or she was not. Apart from other legal incidents in this country, certain constitutional rights may accrue to a woman by virtue of being a wife which would not be available to her if she were not. The matter cannot, therefore, by any rules of evidence be left in a position of doubt nor could the Courts countenance a doctrine of estoppel, if such existed, which had the effect that a person would be estopped from saying that he or she is the husband or wife, as the case may be, of another party when in law the person making the claim has that status. In law it would have been quite open to the husband to have denied at any time after his marriage to the defendant that he was in law her husband. If during the currency of that marriage the plaintiff had claimed that she was his wife, she might have been met with the answer which is being offered on behalf of the defendant in this case – that the plaintiff was estopped from doing so because she had submitted to a jurisdiction which purported to change that status. Consent cannot confer jurisdiction to dissolve a marriage where that jurisdiction does not already exist. The evidence which the plaintiff sought to offer in the present case was directed towards showing that the court in question did not have jurisdiction. In my view, the learned trial judge was quite correct in admitting that evidence."

Henchy J. held, at page 154:

"I fail to see why, although the decree seems good on its face, evidence should not be received to show that its façade conceals a lack of jurisdiction no less detrimental to its validity than if it had been written into the order. To hold otherwise would be to close one's eyes to the available truth and to give effect instead to a spurious divorce which the English court was deluded by sworn misrepresentations into making.

The position is not affected by the fact that it is a foreign decree. The comity of courts under private international law does not require or permit recognition of decisions given, intentionally or unintentionally, in disregard of jurisdictional competence. Counsel for the defendant is unable to point to any authority showing that a party to a foreign divorce which was given without jurisdiction was debarred from giving evidence pointing out the want of jurisdiction. On the contrary, a number of authorities cited in the High Court (or cases referred to in those authorities) exemplify or support the reception of such evidence: see, for example, Bonaparte v. Bonaparte [1892] p. 402, Shaw v. Gould (1868) L.R. 3 H.L. 55, Middleton v. Middleton [1996] 2 W.L.R. 512. I am satisfied that there can be no estoppel by record when the record arose in proceedings, domestic or foreign, upon which the court in question had no jurisdiction to adjudicate."

At page 159 Griffin J. held:

"In the present case, the English court had no jurisdiction over the plaintiff and the husband and, therefore, the Courts in Ireland cannot treat the decree of divorce a vinculo as other than invalid. The decree in the present case was obtained by duress and by fraud going to the point of jurisdiction. The learned trial judge has held that the duress and fraud were those of the husband, but even where a petitioner has obtained a decree in a foreign court which had no jurisdiction to pronounce it, by deceiving the court into believing it had jurisdiction, the court will treat it as invalid: see Bonaparte v. Bonaparte [1892] p. 402, Middleton v. Middleton [1996] 2 W.L.R. 512.

In the result, as the decree of divorce a vinculo was granted without jurisdiction, our Courts will and must treat the decree as invalid and the marriage of the plaintiff and her husband as subsisting at the date of his death …"

Thus while Henchy J. and Griffin J. made a different analysis they arrived at the same decision as Walsh J. O'Higgins C.J. agreed with Walsh J. and Parke J. agreed with all the judgments delivered. Consequently, the court decided to disallow the appeal, holding that courts in Ireland do not recognise a decree of dissolution of marriage granted in divorce proceedings in a foreign jurisdiction when the parties to the marriage were not domiciled in that foreign jurisdiction at that time. Further, that the evidence adduced on behalf of the plaintiff was admissible to establish that the English Court lacked jurisdiction and that the plaintiff was not estopped from denying the validity of the decree of divorce.

Since Gaffney the prohibition on the use of estoppel in cases where marital status is relevant has been a kernel concept of Irish Law. Conversely, evidence adduced (on behalf of the respondent) is admissible to establish that the foreign court lacked jurisdiction and that a party (the respondent) is not estopped from denying the validity of the decree of that court, has been accepted in many cases and is well established precedent in this jurisdiction.

Thus in R.B. v. A.S. [2002] 2 IR 428 at page 456 Keane C.J. stated:

"While it was suggested … that the petitioner, by his conduct at the time in encouraging and facilitating the divorce, was estopped from contesting the validity of his marriage, I do not think that that argument was seriously pressed during the oral submissions and, in my view, correctly, so. It is clear from the judgment of Walsh J. in this court in Gaffney v. Gaffney [1975] I.R. 133 that the doctrine of estoppel cannot operate so as to change a person's status where that status, as a matter of law, has not been changed."

In P.K. (otherwise C.) v. T.K. [2002] 2 IR 186 Fennelly J. noted that the dictum of Walsh J. in Gaffney had not been challenged in that case. He stated at p. 193:

"The evidence to which objection was taken in that case was evidence which the plaintiff had given to show that she had been coerced by threats into presenting a divorce petition in England, a petition which on its face asserted that the plaintiff was domiciled in England. It would have been egregious to exclude it. The dictum of Walsh J. was recently approved in the judgment of Keane C.J. in R.B. v. A.S. (Nullity: Domicile) [2002] 2 IR 428. The matter was not, it appears, fully argued in that case. Nonetheless, the principle appears to have been broadly accepted in many jurisdictions though with occasional dissent … For my own part, I would not wish categorically to exclude the possibility that a person who had acted so in relation to a decree of divorce granted by a foreign jurisdiction might be precluded from questioning its validity. However, the issue has not been argued on this appeal …"

Thus, arising from Gaffney and subsequent decisions of this court, the law is well established that estoppel may not be used, to change a person's status when that has not occurred, to prevent a party demonstrating that a foreign divorce decree was given without jurisdiction. Therefore, unless Gaffney is overruled by this court it is a governing authority on this issue.

9. Marriage of Parties

Submissions were made that the use of estoppel sought was not so as to affect status but was inter partes, in personam, only. I cannot accept such submission. I am satisfied that at the heart of this case is the issue of marriage and the legal status of the parties. If that approach is not taken then anomalies and a de facto fictitious status will enter an already complex area of the law. Thus I am satisfied that the core issue is the status of the parties and thus the applicability of the decision in Gaffney.

10. Merits

It is not a question of seeking the merits of the case, if it were the respondent appears to have little or none. At issue is a question of law and the case falls to be decided on legal principles. The issue is grounded on constitutional and legal principles on marriage and the consequent status of the parties. Therefore, the precedent set in Gaffney is of central importance.

11. Stare Decisis

Thus the next issue for consideration is whether there should be a departure from Gaffney. The law on such departures by this court is well established.

11.1. Submissions

The parties made submissions on the issue of stare decisis. In essence, the applicant submits for a just result by the use of estoppel. It was argued that the conduct of the respondent to the applicant has been such that it would be inequitable and contrary to justice to allow him to rely upon such denial. Counsel on behalf of the applicant submitted that her case is not that the estoppel confers on her the status of a spouse of the respondent but rather he is precluded in these proceedings from saying that she does not enjoy such status. It was submitted that there have been enormous legal changes in our society since Gaffney was decided in 1975. It was submitted that because there was no divorce in Ireland until 1996 a considerable number of people applied for divorces in foreign jurisdictions when they had little or no link with the jurisdiction in question, and that they then entered new marriages. As a consequence, anomalous and difficult cases emerge where litigants would attempt to gain an unfair advantage. It was queried whether in the changed social and legal environment since 1975 it is right that the law should give an appropriate remedy to defeat such efforts. Otherwise, it was submitted, persons would be allowed to discard with impunity obligations which they have undertaken leaving the party in the second union to be a charge on the State should he or she be impecunious.

Reference was made also to s. 29 of the Family Law Act, 1995 and McG. v. D.W. (No.2) [2000] 4 I.R. 1. It was submitted, that as a consequence, a declaration may be binding on some but not on all, on the parties but not the world. Consequently, it was submitted, the principle is not unlike the concept of estoppel in these circumstances as underpinned in the changed circumstances.

In submissions reference was made to the law in other countries. Reliance was based on Downton v. Royal Trust Company et al (1972) 34 D.L.R. (3d) 403 where Laskin J., for the court, concluded (of a similar principle) at p. 412:-

"My canvass of typical cases which have reached Canadian Courts indicates that the only claim to consistency that they exhibit is the application of a preclusion doctrine against a spouse who, having obtained a decree of divorce or nullity from a foreign Court incompetent to give it, seeks thereafter to assert that incompetence in order to gain a pecuniary advantage against his or her spouse or the estate of the spouse. The doctrine has an ethical basis: a refusal to permit a person to insist, to his or her pecuniary advantage, on a relationship which that person has previously deliberately sought to terminate."

On behalf of the applicant it was submitted that it is possible by using the doctrine of estoppel to bring about a just result as between the applicant and respondent while not altering the status of any of the parties by reason of such estoppel. Counsel submitted that the respondent, because of his conduct, should be denied a specific remedy or defence which would normally flow from the facts. It was submitted that to do otherwise is to ignore part of the relevant facts in that the respondent deceived the applicant, went through a purported solemn ceremony of marriage with her, and lived with her as man and wife for seventeen years during which they had two children.

Counsel on behalf of the respondent relied on Gaffney, submitting that Gaffney precludes the operation of the doctrine of estoppel in relation to marital status. It was submitted that, applying the principles in Mogul of Ireland v. Tipperary (N.R.) County Council [1976] I.R. 260, there are no compelling reasons why Gaffney should be overruled. Consequently, it was argued, the respondent cannot be estopped from asserting and establishing the invalidity of the Ohio divorce with the result that he is not validly married to the applicant.

11.2. Law – Precedent

The determination of the law by the Supreme Court is final, except where, for the most compelling reasons, the court will depart from an earlier decision. This was described in the State (Quinn) v. Ryan [1965] I.R. 70, where at p. 127 Walsh J. stated:

"This is not to say, … that the Court would depart from an earlier decision for any but the most compelling reasons. The advantages of stare decisis are many and obvious so long as it is remembered that it is a policy and not a binding, unalterable rule."

In Attorney General v. Ryans Car Hire Limited [1965] I.R. 642 at p. 653 Kingsmill

Moore J. said:

"The law which we have taken over is based on the following of precedents and there can be no question of abandoning the principle of following precedent as the normal, indeed almost universal, procedure. To do so would be to introduce into our law an intolerable uncertainty. But where the Supreme Court is of the opinion that there is a compelling reason why it should not follow an earlier decision of its own, or of the Courts of ultimate jurisdiction which preceded it, where it appears to be clearly wrong, is it to be bound to perpetuate the error?

… In my opinion the rigid rule of stare decisis must in a Court of ultimate resort give place to a more elastic formula. Where such a Court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases."

In Mogul of Ireland v. Tipperary (N.R.) County Council [1976] I.R. 260 the Supreme Court was asked to overrule a line of previous decisions. The court stated, O'Higgins C.J., at page 269:-

"When a court does pronounce on the meaning of a statue and thereby defines the law, a court of review ought not to pronounce this definition incorrect merely because a contrary view as to the statute's meaning is also possible."

At p. 272 Henchy J. said:-

"Therefore, the primary consideration is whether this Court is clearly of opinion that the decision in Smith's Case [1949] I.R. 322 was erroneous. If the point was res integra, one might reach the opposite conclusion, but I do not think it is possible to assert a clear opinion that Smith's Case was wrongly decided … A decision of the full Supreme Court (be it the pre 1961 or the post 1961 Court), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability and predictability should yield to the demands of justice. However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the latter court must, at the least, be clearly of opinion that the earlier decision was erroneous …

Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maximum communis error facit jus applies …"

These principles are well established and have been applied in many decisions. For example, in Re Illegal Immigrants (Trafficking) Bill [2000] 2 IR 360 Keane C.J. stated that no "relevant argument or authority was overlooked" in the earlier judgment and there was no "compelling reasons which would permit the court to depart from those decisions."

This court will only depart from a previous decision on law where it is clear that an earlier decision was erroneous and that there are compelling reasons (which would include the absence of reference to an argument or legal authority but not exclude other factors) not to follow the precedent. It is a principle to be applied in exceptional cases. Thus, the question is whether this is such a case. There is a heavy burden on the applicant to meet these criteria.

11.3. Potential Effect of Use of Estoppel

The possible effect of the use of an estoppel is highlighted by the potential order of the Circuit Court should estoppel be used. First, there would be a decree based on judicial separation (which is a decree grounded on the parties being spouses) which would be based on the use of estoppel. Yet, on the counterclaim, there would be a decree of nullity, which is grounded on the parties not being spouses. Both these orders would relate to the same "marriage." Thus the one order would have separate portions effectively recognising a different status for the parties. The potential for anomaly arising from the use of estoppel in a situation grounded on status is clear from the consideration of such a single possible order in this case.

11.4. Legal Fiction

The facts and status of a person, especially a constitutional status with consequential rights and duties, should not be ignored by a court. A court order should not be based on a legal fiction. If such an approach were taken it would cause more anomalies and difficulties. I would be very cautious about an approach that essentially supported a legal fiction. Legal fictions have caused many difficulties in the past in legal systems.

There has been a long history of legal fictions in the law. They had a place in the early development of law and its growth. In Ancient Law, 10^th Edit., at p. 23 Sir Henry Maine wrote of legal fictions:-

"I employ the word 'fiction' in a sense considerably wider than that in which English lawyers are accustomed to use it, and with a meaning more extensive than that which belonged to the Roman 'fictiones'. Fictio, in old Roman law, is properly a term of pleading, and signifies a false averment on the part of the plaintiff which the defendant was not allowed to traverse; such, for example, as an averment that the plaintiff was a Roman citizen, when in truth he was a foreigner. The object of these 'fictiones' was, of course, to give jurisdiction, and they therefore strongly resembled the allegations in the writs of the English Queen's Bench and Exchequer, by which those courts contrived to usurp the jurisdiction of the Common Pleas:- the allegation that the defendant was in custody of the king's marshal, or that the plaintiff was the king's debtor, and could not pay his debt by reason of the defendant's default. But now I employ the expressions 'Legal Fiction' to signify

any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. The words, therefore, include the instances of fictions which I have cited from the English and Roman Law, but they embrace much more, for I should speak both of the English case-law and of the Roman Responsa Prudentium as resting on fictions. Both these examples will be examined presently. The fact is in both cases that the law has been wholly changed; the fiction is that it remains what it always was. It is not difficult to understand why fictions in all their forms are particularly congenial to the infancy of society. They satisfy the desire for improvement, which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change which is always present. At a particular stage of social progress they are invaluable expedients for overcoming the rigidity of law …We must, therefore, not suffer ourselves to be affected by the ridicule which Bentham pours on legal fictions wherever he meets them. To revile them as merely fraudulent is to betray ignorance of their peculiar office in the historical development of law. But at the same time it would be equally foolish to agree with those theorists who, discerning that fictions have had their uses, argue that they ought to be stereotyped in our system. … There can be no doubt of the general truth that it is unworthy of us to effect an admittedly beneficial object by so rude a device as a legal fiction. I cannot admit any anomaly to be innocent, which makes the law either more difficult to understand or harder to arrange in harmonious order."

I am satisfied that in relation to such an important area as status and the constitutional family it is inappropriate to consider using a rule which, by analogy, creates or uses a legal fiction. This is an inappropriate device to be used in a modern constitution. The rule of law is not supported by such a subterfuge.

11.5. No Compelling Reasons

The next matter for consideration is whether there should be a departure from Gaffney. I have considered carefully the reasons submitted as to why there should be a departure from Gaffney. I am satisfied that there should not. I find that the applicant has provided no compelling reasons. I am not satisfied that the submissions as to the court decision being inter partes only, or for a particular action, or in personam, are correct or meet the onus. I am satisfied that submissions should not succeed either to distinguish Gaffney or to cause the court to depart from Gaffney. Such an alteration, permitting the use of estoppel in actions relating to marital status, would give rise to anomalies and problems. It would mean that people would be treated as married for some purposes and not for others. I am satisfied that when the basic issue is, or the case rests on the issue of, marriage, estoppel may not be used to prevent the legal status of a person being recognised and relied upon.

To preclude the respondent from relying on the facts of the case, to apply estoppel, would mean that for the purpose of this case the applicant would enjoy a status to which she is not entitled in law. While it is clear that there have been enormous legal changes since 1975, the core principle in Gaffney remains the same. Indeed, if as a consequence of the enormous legal changes, there are many anomalous and difficult cases where litigants might seek to gain an unfair advantage, there is no merit in making the situation more complex and potentially more problematical by using estoppel in some circumstance and not others. It would have the effect of introducing an element of legal fiction into this already complex field.

As to the issue of obligations – and the submitted discarding of obligations with impunity – that is a serious matter but not to be resolved in this way. There are methods other than based on a valid marriage to obtain at least a measure of relief. Finally, I would distinguish the situation which arose in McG. v. W (No. 2) [2000] 4 I.R. 1 from this case. It is not relevant, it relates to a specific statutory provision and is not helpful in analysing the fundamental issues in this case.

11.6. Other Jurisdictions

The jurisprudence from other jurisdictions was opened in submissions and it was argued that it should be persuasive to change Irish law. The terms describing the principle vary from jurisdiction to jurisdiction. Reference was made, for example, to G. v. M. [1881-5] All E.R. Rep. 397 where the Earl of Selborne, L.C., said at p. 399:-

"My own belief is, that to whatever criticism the phraseology of judges in those cases may be open, (and I must say that the adoption of that particular phrase 'sincerity' seems, as counsel said, to suggest a psychological question rather than one of law or fact, diving into the motives of a person's mind rather than trying whether a cause of action exists or not), I think I can perceive that the real basis of reasoning which underlines that phraseology is this, and nothing more than this, that there may be conduct on the part of the person seeking this remedy which ought to estop that person from having it; as, for instance, any act from which the inference ought to be drawn that during the antecedent time the party has, with a knowledge of the facts and of the law, approbated the marriage which he or she afterwards seeks to get rid of, or has taken advantages and derived benefits from the matrimonial relation which it would be unfair and inequitable to permit him or her, after having received them, to treat as if no such relation had ever existed.

That explanation can be referred to known principles of equitable, and, I may say of general, jurisprudence. The circumstances which may justify it are various, and in cases of this kind, many sorts of conduct might exist - taking pecuniary benefits for example, living for a long time together in the same house or family with the status and character of husband and wife, after knowledge of everything which it is material to know. I do not at all mean to say that there may not be other circumstances which would produce the same effect; but it appears to me that, in order to justify any such doctrine as that which has been insisted upon at the Bar, there must be a foundation of substantial justice, depending upon the acts and conduct of the party sought to be barred. Further than that, I do not think it necessary for the purpose of this case to go. Of course, when facts are in dispute, motive may be all-important; but that is not the case here.

If that be a true explanation of the doctrine, so far as it can be considered law in England (for into Scotland it never seems to have found its way at all), under the name of 'sincerity,' or under any name distinguishing it from 'approbate' and 'reprobate' and the general principles of equity, then I say that if this case had to be tried by that doctrine, the circumstances would show that it was inapplicable."

The phrase "no estoppel binds the court" was established as a fundamental principle in the divorce courts of England and Wales. It was so stated in Harriman v. Harriman [1900-10] All E.R. Rep. 85; [1909] p. 123, based on a construction of statutory law. The statutory sections were re-enacted in English statutes from the nineteenth century and during the twentieth and applied to divorce and judicial separation proceedings. In essence, the English jurisprudence grew on the construction of English statutes.

Reference was made to the Canadian case Downton v. The Royal Trust Company et al 34 D.L.R. (3d) 403. Laskin J. giving the judgment of the court reviewed the position in Canada holding:

"My canvass of typical cases which have reached Canadian Courts indicates that the only claim to consistency that they exhibit is the application of a preclusion doctrine against a spouse who, having obtained a decree of divorce or nullity from a foreign Court incompetent to give it, seeks thereafter to assert that incompetence in order to gain a pecuniary advantage against his or her spouse or the estate of the spouse. The doctrine has an ethical basis: a refusal to permit a person to insist, to his or her pecuniary advantage, on a relationship which that person has previously deliberately sought to terminate. The ethical basis is lost, however, where there has been both invocation and submission to the foreign jurisdiction by the respective spouses; and if there is to be a modification or rejection of the preclusion doctrine in respect of one or both of the spouses, other considerations must be brought into account; there may be, for example, an alleviating explanation for the submission to the jurisdiction of an incompetent foreign Court. So too, where third parties are involved in a case where a spouse who has obtained an invalid foreign divorce or decree of nullity seeks to rely on its invalidity.

Any ethical factors underlying the preclusion doctrine are submerged in overriding consideration when an invalid foreign decree is pressed in a strictly matrimonial cause in which divorce or nullity is sought. Marital status per se cannot be altered or perpetuated by a preclusion doctrine, and hence, as in Schwebel v. Schwebel (1970), 10 D.L.R. (3d) 742, [1970] 2 O.R. 354, 2 R.F.L. 45 (Ont.), a spouse should not be denied the right to seek a divorce before a competent Court merely because that spouse earlier invoked the jurisdiction of an incompetent foreign Court.

This result appears to me to be consonant with a public policy which today more than before recognises that parties whose marriage has failed should be allowed to dissolve it. I see no inconsistency between this position and the application of a preclusion doctrine against a spouse who has ignored the jurisdictional requirements for a valid dissolution and who would none the less insist to his or her own pecuniary advantage that the law be applied strictly in his or her favour in disregard of an attempted dissolution which is invalid.'

He then reviewed the American Law Institute, Restatement of the Law and the Comment on the Rule, quoting it:

'The rule's scope of application varies from state to state and, even within the confines of a single state, is often clouded with uncertainty. In general, it may be said that a person who obtains a divorce and then remarries will not be permitted to attack the validity of the divorce in order to free himself from his obligations to his second spouse or in order to claim an inheritance from the estate of the first spouse. On the other hand, if both parties to a divorce attack its validity in a subsequent action, neither should be estopped from making such an attack, since neither is placing reliance upon the validity of the divorce …

A spouse who has accepted benefits under the divorce will usually be held estopped to attack it. So an invalid ex parte divorce obtained by a husband will be held immune from attack by a wife who has remarried. Usually, such a divorce will also be held immune from attack by a wife who has accepted alimony under the original decree or who has waited an unreasonable long time before attacking the divorce, particularly if the husband has remarried in the meantime.

The cases are divided on the question whether third has at times persons may be etopped from attacking a divorce decree. Such an estoppel been imposed upon one who persuades a woman to seek a divorce in order that he may marry her, particularly if he finances the divorce and provides her a lawyer. Likewise, a person may be estopped from attacking a divorce if his claim is derived from a person who would have been estopped.'

He then held:

In the present case, I am satisfied that the lawful wife submitted to the foreign Court as she did to protect her existing benefits which were given as a result of her separation from her husband in Newfoundland. Her submission was, accordingly, a special one and could have no effect against her in Newfoundland in enforcing the separation terms, since she would not have to rely there upon the foreign decree in order to enforce them. This is not a case where the appellant's maintenance benefits rested on the foreign divorce decree alone and where she had taken those benefits until the deceased's death, and then sought to assert that she was the lawful wife in order to gain additional benefits.

There is no express finding that the maintenance provisions of the separation agreement continued after the husband's death. The trial judge appears to have regarded this obligation as terminating on death, although it was incorporated in the foreign divorce decree, which in his opinion could not alter the wife's marital status. At any rate, I take his award of $20,000 to the wife out of the deceased's estate as being the only benefit to which she should be entitled and, in that respect, superseding any obligation under the separation agreement, save as to arrears up to the time of the husband's death.

The present case stands, therefore, as one where the wife's formal submission to the foreign Court was not followed by any act or conduct in reliance upon it nor was there any acceptance by her of benefits under it. The Court of Appeal stated in its reasons that she 'in subsequent years, relying on that decree, held herself out to have been, and must be presumed to have wished to be considered as having been divorced from, and therefore no longer the wife of Mr. Downton.' Counsel for the respondent was unable to support this assertion before this Court. There was certainly no affirmative evidence to support it; there is only the fact of a previous separation and the fact that Dr. Downton brought a second wife back with him after the foreign divorce. I am unable to agree, therefore, that the appellant is precluded from denying the validity of the foreign divorce decree in Newfoundland and from insisting on her status as the lawful window of the deceased."

Consequently, on this analysis, it appears that the applicability of the preclusion doctrine may depend upon the circumstances of the case, on ethical considerations. Yet it should have no operation when the issue of an invalid foreign divorce arises in marital cases of divorce or nullity. There is an echo of Gaffney in Laskin J.'s reference to marital status per se.

Having considered the submissions on the law in other jurisdictions I am not persuaded that the settled law of this jurisdiction, grounded as it is to the Constitution of Ireland, 1937, may be advanced by cases from other jurisdictions.

11.7. Decision on Stare Decisis

Applying the legal principles, I am satisfied that no key arguments were overlooked in Gaffney; it has not been established to be clearly wrong; it has not been established that there was any error; it has not been established that there are any compelling reasons as to why Gaffney should not be followed. Consequently, I am satisfied that the determination in Gaffney should not be abandoned or departed from.

12. Decision

Finally, then the question posed to the court falls to be decided. At the core of this case is the issue of status. The status of the parties gives rise to constitutional, as well as legal, rights. The status of a person is important for the individual, for the families involved and the community. A person and their status is a building block in the fundamental unit group of our society, under the Constitution, the family.

All the reliefs sought by the applicant are predicated on the fact that she is a spouse. Yet under the law and the Constitution she is not. I am satisfied the applicant cannot evade the reality of the situation by her legal argument such as submitting that the decision is inter partes only, that it is in personam, or that the respondent be estopped from proving all the circumstances of the case. The law is as stated in Gaffney and precludes the operation of the doctrine of estoppel in relation to marital status. The doctrine of estoppel cannot operate to change a person's status in law.

The law on estoppel and marital status was stated by Walsh J. in Gaffney and has been followed and accepted in subsequent cases. The principles he enunciated are applicable to this case. Applying the principles of law stated by Walsh J. in Gaffney, and repeated in case law subsequently, the respondent is not estopped from bringing forth evidence as to his application for, and the status of, his divorce in Ohio. Therefore, I would answer the case stated from the Circuit Court in the negative.

13. Conclusion

This case raised issues determined in Gaffney and subsequent cases. No compelling reasons have been given for a departure from Gaffney. Consequently the principles set out in Gaffney are applicable to this case: the doctrine of estoppel may not be used to change a person's status when that has not occurred.

The opinion of the Supreme Court was sought on the question:

"Whether I am entitled to hold in these proceedings as a matter of law, having regard to the findings of fact made by me, that the respondent is estopped from denying that he is married to the applicant."

I am satisfied that the Circuit Court is not entitled to hold in these proceedings as a matter of law, on the findings of fact, that the respondent is estopped from denying that he is married to the applicant. Thus I would answer the question posed in the negative.

THE SUPREME COURT

S.C. No. 100 of 2003

IN THE MATTER OF THE COURTS OF JUSTICE ACT, 1947

Denham, J.

Murray, J.

McGuinness, J.

Fennelly, J.

McCracken, J.

BETWEEN

CK

Applicant

And

JK

Respondent

And

F McG

Notice Party

Judgment delivered on the 30^th day of March, 2004 by Murray J.

The respondent's defence in these proceedings pending before the Circuit Court is based on his own deceit and fraudulent statements.

He says that by reason of his own deceit and fraudulent misrepresentation concerning his marital status he cannot be treated as if he had been, at any time, validly married to the Applicant with whom he went through a ceremony of marriage at the Registry Office, Dublin on the 25^th March, 1983. Thereafter he cohabited with her as husband and wife for seventeen years, there being two children of that 'marriage'. They lived in the family home, purchased in joint names, where they continue to reside, with the two children pending the determination of these proceedings. The relationship between both parties having broken down, the applicant initiated proceedings in the Circuit Court in September, 2001 seeking an order of judicial separation pursuant to the Judicial Separation and Family Law Reform Act 1989 and various other reliefs pursuant to that Act including sole custody of the dependant children, maintenance as well an order in respect of the family home pursuant to the Family Home Protection, Act, 1976.

The respondent in resisting the applicant's claim before the Circuit Court on the grounds that he was never lawfully married to her asserts that she does not, and never did, enjoy the status of his wife. Accordingly, she is not entitled to the remedies which she seeks pursuant to the Act of 1989 or any other remedies based on the premise that they were lawfully married such as any order pursuant to the Act of 1976.

As a result of the issues which arose from this defence the learned Circuit Judge stated a question of law for the opinion of this Court pursuant to section 16 of the Courts of Justice Act 1947. I will come to that question in a moment, but first of all I would summarise briefly the relevant facts relied upon by the respondent and set out in the Case Stated.

The respondent married for the first time, in Dublin, on the 7^th September, 1968. There was one child of that marriage. In or about 1972, that marriage having failed, the respondent and his wife separated. His wife followed her own career, and did not seek maintenance from him. Since then she effectively had nothing more to do with him and carried on her life quite independently of him. In the late 1970s the respondent and the applicant developed a relationship. In 1981 and 1982 the respondent had occasion to go to the State of Ohio, in the United States, on business trips. With the assistance of an attorney there, with whom he had a social friendship, he applied to the courts in Ohio for a divorce in respect of his marriage in 1968 to his wife. He lodged with the Ohio court papers calculated to mislead it by providing incorrect information relating to an address which he claimed to have in Ohio State and as regards his residency there. This deceit he persisted in to the final hearing of the application and the purported granting of the divorce by the court in Ohio in March, 1982.

His wife of the marriage of 1968 was notified of the divorce application but according to the findings of the learned Circuit Judge was more bemused than anything else by the application since, having lived a life totally independently of the respondent for many years and not wishing to have anything to do with him, she did not consider it could have any practical effect from her point of view. Therefore she took no active interest in the divorce application.

In 1983 he applied to the general register office in England for recognition of the Ohio divorce but this was refused.

All this was done in the context of both the applicant and the respondent desiring to be married. When it came to the marriage the applicant, being aware of the earlier marriage, sought the divorce order which the respondent had informed her he had obtained. As found by the learned Circuit Court Judge and set out in the Case Stated, "… on its reading it seemed to her that a judge of capable authority, who had the attendance of the respondent in court and was satisfied of all legal requirements, had granted the divorce sought."

The learned Circuit Judge also found in his judgment, annexed to the Case Stated, that the respondent, "realising he was not properly divorced, actively concealed that fact from the Registrar and from her" [the applicant].

From the findings of the learned Circuit Judge and the facts set out in the Case Stated it is clear that the applicant bona fide entered into the marriage which was solemnised at the Registry Office Dublin in March, 1983.

It is common case that a divorce obtained in the United States in respect of a marriage solemnised in Dublin, where both parties are domiciled in Ireland, could not be regarded as a valid divorce in law. Moreover, the respondent having, on his own admissions, knowingly deceived the court in Ohio, knew that it had been improperly obtained, even in terms of the law of Ohio. He relies on his deceit and the invalidity of the Ohio divorce as a basis for resisting the applicant's otherwise legitimate claims. He deceived the applicant by presenting her with a copy of the Ohio order for divorce as a valid divorce entitling him to become lawfully married to her. That was manifestly a fraudulent misrepresentation designed to, and which had the effect of, inducing her to go through the marriage ceremony in Dublin.

A key issue which arose in the Circuit Court was whether the respondent was estopped as between himself and the applicant, from relying on the unlawful status of the marriage ceremony which he went through with the applicant. Could he rely on the invalid and ineffective nature of the Ohio divorce to resist the remedies which the applicant now sought as an estranged wife having previously relied on that divorce as being valid for the purpose of inducing her marry him? The question of law posed by the learned Circuit Court Judge for the opinion of this court is in the following terms:-

"Whether I am entitled to hold in these proceedings as a matter of law, having regard to the findings of fact made by me, that the respondent is estopped from denying that he is married to the applicant?"

Fundamentally, the answer to that question turns on whether the law and principles set out by this court in Gaffney –v- Gaffney [1975] I.R. 133 applies. It is common case that if Gaffney –v- Gaffney does apply, the answer to the question posed by the learned Circuit Court Judge must be in the negative.

I have read the judgement of the President of the Court, Denham, J. and I fully agree with her judgment and her conclusion that the law as set out in Gaffney –v- Gaffney applies in this case.

I too have come to the conclusion that the law as stated in Gaffney –v- Gaffney is a comprehensive and complete statement of the law related to the issue raised in the question posed in the Case Stated. Denham, J. has cited extensively the relevant passages from Gaffney –v- Gaffney and, in order to avoid repetition, I will confine myself to citing what I consider to be the kernel of the decision in that case; "The plaintiff was either his wife or she was not. Apart from other legal incidence in this country, certain constitutional rights may accrue to a woman by virtue of being a wife which would not be available to her if she were not. The matter cannot therefore, by any rules of evidence be left in a position of doubt nor could the courts countenance a doctrine of estoppel if such existed, which had the effect that a person could be estopped from saying that he or she is the husband or wife, as the case may be, of another party when in law the person making the claim has that status."(Walsh, J. p.152).

However, there is one matter on which I would wish to add some observations and conclusions. I would state at this point that, having regard to my conclusions on that matter and my agreement with judgment of Denham, J, I am of the view that the answer to the question posed should be in the negative.

A remedy for a wrong?

The learned Circuit Court Judge when faced with the difficult issues raised in this case acknowledged the strength of the decision of this court in Gaffney –v- Gaffney as authority for the law on this matter but also stated "I believe that justice between the parties can only be achieved by prohibiting or estopping the respondent from attacking the validity of his divorce and by definition the validity of his marriage to the applicant."

The potential injustice of which he speaks is patent. The applicant bona fide went through a marriage ceremony with the respondent, she lived with him as wife and husband for seventeen years and bore two children. The marriage relationship broke down (essentially she says because of his problem with alcohol and related misbehaviour – although this is not strictly relevant to the legal issues) as a result of which she claims to be entitled by reason of her status as a wife to the statutory protection which the law affords namely, a judicial separation, custody of the children, maintenance and an order in respect of the family home. Absent the status of a lawfully married wife she is denied these remedies or, as the learned circuit judge appeared to contemplate, any remedy at all.

It was also submitted on behalf of the applicant that this Court should be slow to give an answer to the question raised by the trial judge which would mean that she would suffer such an injustice. It was submitted that this court should adopt principles of law which would ensure that justice is available to her, and also to others, who find themselves in a similar factual circumstance. One can well understand the concerns of the learned circuit judge and the reasons for that argument by the applicant in this Case Stated.

In a society based on the rule of law it would certainly be a major gap in its fabric if persons who have been wronged in the manner in which the applicant has been in this case were to be left without remedy. In such a society the system of law is intended to be complete, that is to say that within its framework it provides, in principle, a remedy for any denial of rights conferred by law or its constitution (the extent of the remedy may be constrained by public policy considerations in the interests of the common good or, where the right is conferred by law by the limited nature of the right, but none of these extra considerations seem to me to arise in this context). Either the applicant has some remedy against the applicant or she has not.

Here is a woman who married and remained married for seventeen years and raised two children. When the marriage to her husband, who has had an undisputed drink problem, breaks down, and she seeks the normal protection for which the law provides, the husband produces the order for divorce which he enticed her to rely on and claims that it is all a fraud and that she should be denied everything to which she thought she was entitled to as his wife. The applicant has sought to rely on the doctrine of estoppel as a means of defending the consequences of being stripped ignominiously of the legal and constitutional status of a duly married wife. Gaffney –v- Gaffney says that estoppel cannot apply in these circumstances as a remedy for the applicant. If, as has been suggested, estoppel was the only remedy available to the applicant and in the absence of which she had no remedy at all, I would be bound to entertain grave doubts as to whether that case was indeed a complete statement of the law on this matter. Therefore, I feel it necessary to consider whether, as argued by the Attorney General in defence of the law as laid down in Gaffney –v- Gaffney, whether there are indeed any alternative remedies available to a plaintiff in a similar fact situation as the learned Circuit Court Judge found the applicant in this case to be.

Thus, this is a question of law arising in this Case Stated which for me is directly relevant to the question whether the law as reflected in Gaffney –v- Gaffney is indeed the law as it applies to these circumstances having regard to the protection which the Constitution gives to the institution of marriage, and married persons.

Article 41.3.1. provides "The State pledges itself to guard with special care the institution of Marriage on which the Family is founded, and to protect it against attack."

The next paragraph of that sub-article goes on to provide for the protection of persons who entered into a marriage contract but whose marriage is later dissolved pursuant to that sub-article by ensuring, inter alia, that proper provision is made for the spouses and any of the children of the marriage.

In commenting on the provision for continuing obligations of one former spouse to another even after dissolution of the marriage, I stated in DT –v- CT [2002] 3 I.R. 355, 405 "This reflects the fact that marriage is, in principle, intended to be a lifetime commitment and that each spouse has fashioned his or her life on that premise. If the law permitted a spouse to cut himself or herself adrift of a marriage on divorce without any continuing obligation to the former spouse it would undermine the very nature of the marriage contract itself and fail to protect the value which society has placed on it as an institution."

Paragraph 3 of Article 41.3 of the Constitution provides: -

"No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the government and parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved."

These provisions of the Constitution are intended not only to protect the institution of marriage as such against attack but clearly envisage that the rights of individuals, as married persons, should be protected.

Again, as I observed in DT –v- CT "… marriage [is] a solemn contract of partnership entered into between man and woman with a special status recognised by the Constitution. … the moment a man and woman marry their bond acquires a legal status. The relationship once formed, the law steps in and holds the parties to certain obligations and liability." That status, with its concurrent obligations and liabilities, is protected by the Constitution. When a person in good faith enters into a marriage contract, solemnised in accordance with law, he or she is entitled to expect to enjoy their constitutional status and the protections which the law affords, even in the event of its breakdown or ultimate dissolution.

If the law permitted a person to induce, by deceit or fraudulent misrepresentation, another to enter into an otherwise lawful marriage and after many years of ostensible marriage to cut himself adrift without any obligation to the other person it would in my view undermine the status of the marriage contract itself and the constitutional rights which that person was entitled to have protected by virtue of that status. A prosecution for bigamy where a person enters into a second marriage in the full knowledge that a first marriage is valid and subsisting may be a means of protecting the public interest but it is not a remedy which vindicates or protects the rights of the injured party. A declaration as to status can afford protection to the legitimate spouse of the first marriage. In my view it is a direct attack on the constitutional rights of a person for another to induce them or cause them to enter into a duly solemnised marriage contract by deceit when the latter knows that he lacks the capacity to enter into a valid marriage by reason of a pre-existing and subsisting marriage.

In bona fide participating in a marriage ceremony before a person duly authorised in the eyes of the State to perform it she was entitled to the constitutional status of a married person; "certain constitutional rights may accrue to a woman by virtue of being a wife" (Gaffney –v- Gaffney, 152). That was a right she was entitled to enjoy at least throughout the seventeen years when they lived together as husband and wife with the consequential protections which the law provides should the marriage irretrievably break down. She was denied those rights by the deceit and fraudulent misrepresentations of the respondent.

If a conspiracy to dismiss or a dismissal of an employee because of his refusal to undertake to join a trade union as a condition of his employment is an actionable infringement of his constitutional right to associate or dissociate (Meskell –v- C.I.E. [1973] I.R. 121) I can see no reason why it is not an actionable infringement of , in this case, a woman's right to marital status if, having been ostensibly lawfully married, she is denied it by reason of the deceit and/or fraudulent misrepresentations of her partner.

In Meskell –v- C.I.E. Walsh, J. held:- "It has been said on a number of occasions in this Court, most notably in the decision Byrne –v- Ireland [1972] I.R. 241 that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it."

Walsh, J went on to state, "Therefore, if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the person or persons who have infringed that right. As was pointed by Mr Justice Budd in Educational Company of Ireland Ltd –v- Fitzpatrick (No. 2) [1961] I.R. 345, 368 it follows that "if one citizen has a right under the Constitution there exists a correlative duty on the party of other citizens to respect that right and not to interfere with it." He went onto say that the courts would act so as not to permit a person to be deprived of his constitutional rights and would seek to it that those rights were protected."

That is the position as I see it of the applicant in these proceedings. She is entitled to the protection of the courts for the infringement of her constitutional rights.

That is not to say that the applicant must necessarily seek to enforce her rights by an action which does not fit into any of the ordinary forms of action as Walsh, J. envisaged in certain circumstances in Meskel –v- C.I.E.

In McDonnell –v- Ireland [1998] 1 I.R. 134 at 147, Barrington J. commented on the remedies available to a plaintiff where the wrong alleged may involve the infringement of a constitutional right but where there is nonetheless a cause of action under ordinary law. In that respect he stated: -

"But in the passages quoted, Walsh, J. was dealing with special or exceptional cases where the general body of the law provides no appropriate remedy. In the vast majority of cases legislation or the general body of the law would provide a remedy. … The general problem of resolving how constitutional rights are to be balanced against each other and reconciled with exigencies of the common good is, in the first instance, a matter for the legislature. It is only when the legislature has failed in its constitutional duty to defend or vindicate a particular constitutional right pursuant to the provisions of Article 40.3 of the Constitution that this court, as the court of last resort, will feel obliged to fashion its own remedy. If, however, a practical method of defending or vindicating the right exists, at common law or by Statute, there will be no need for this court to interfere. … There is no doubt that constitutional rights do not need recognition by the legislature or by common law to be effective. If necessary the courts will define them and fashion a remedy for their breach. There may also be cases where the fact that a tort is also a breach of a constitutional right may be reason for awarding exemplary or punitive damages.

But, at the same time, constitutional rights should not regarded as wild cards which can be played at any time to defeat all existing rules. If the general law provides an adequate cause of action to vindicate a constitutional right it appears to me that the injured party cannot ask the court to devise a new and different cause of action. Thus, the constitution guarantees the citizens right to his or her good name but the cause of action to defend his or her good name is the action for defamation. The injured party, it appears to me, has to accept the action for defamation with all its incidents including the time limited within which the action must be commenced."

Counsel for the Attorney General in submitting that there are remedies available to the applicant other than a resort to estoppel in this case a referred to the Report on Nullity of the Law Reform Commission which remarked that "The general principles of the law of tort, contract, and property, would appear to be clearly capable of rendering significant protection to a person who entered into marriage as a result of fraud or duress." Counsel also referred to the statement in the third edition of McMahon and Binchy, Law of Torts, where it was observed at para. 35.09 "Misrepresentations of law give rise to some uncertainty. The general rule is that misrepresentation must be one of fact rather than law. Clearly the boundaries between fact and law cannot easily be drawn in some cases. If a man represents that he is legally entitled to marry and fails to mention that he is already in a valid subsisting marriage, he may be sued for deceit by the woman he dupes …"

In Forshall and Anor –v- Walsh and Ors (unreported) High Court, 18^th June, 1997, at page 64 of his judgment, Shanley, J. held:-

"A plaintiff seeking to establish the commission of the tort of fraud or deceit must prove –

(i) The making of a representation as to a past or existing fact by the defendant

(ii) that the representation was made knowingly, or without belief in its truth, or recklessly, careless whether it be true or false

(iii) that it was intended by the defendant that the representation should be acted upon by the plaintiff

(iv) that he plaintiff did act on foot of the representation and

(v) suffered damage as a result.

Where fraudulent misrepresentation is alleged it must be established that the representation (as defined above) was intended to and did induce the agreement in respect of which the claim for damages arises."

Counsel for the Attorney General also drew the attention of the court to the dicta of Mellish L.J. in the court of appeal of England and Wales in Meluish –v- Milton [1876] 3 C.h. D.27 where he stated, in the context of a case concerned with the probate of a will, "Though we term the conduct alleged in this case fraudulent concealment, it is equivalent to fraudulent misrepresentation. When the lady went through the ceremony of marriage with the testator she in effect represented to him that she was capable of becoming his lawful wife and every day whilst they were living together, she must be taken as continuously representing to him that she was his lawful wife. If at the same time she knew that her former husband was alive, this is what the court would take notice of as fraudulent misrepresentation. For what purpose were these representations made? To obtain all the benefits of the position of the testators lawful wife, and a testamentary provision in case she survives her husband, is one of the advantages which a wife most naturally expects. The representations must, therefore, be treated as made, among other things, for the purpose of obtaining a will in her favour and it makes no difference whether this particular advantage was actually present to her mind or not. This, therefore, is a suit to set aside a will as having been obtained by fraud …"

For the purposes of this Case Stated, on the basis of the facts as found by the learned Circuit Court Judge, I am quite satisfied that the applicant would have a remedy in law for actionable deceit grounded on the fraudulent misrepresentations of the respondent.

I emphasise that this is based on the facts as found by the learned Circuit Court Judge in the proceedings before him because should the plaintiff initiate other proceedings against the applicant the onus would be on her, in the ordinary way, to establish the necessary facts entitling her to any relief claimed.

In order for such an action to be considered, in the words of Barrington, J. an "appropriate remedy" for the infringement of constitutional rights any order which a court may make where deceit is established should provide a reasonable measure of compensation for the consequential and foreseeable loss which a plaintiff has sustained. Clerke and Lindsell on Torts (13^th edition) para. 1648 notes that in actions for fraud "The damages are at large and are to compensate the plaintiff for all the loss he has suffered." It is also interesting to note in a decision of the Alberta Supreme Court, McDonald, J. in Beaulne –v- Ricketts [1979] 96 D.L.R. (3d) 550, held "In this case, as in the Graham case, the defendant was guilty of deceit and fraudulent misrepresentations. By such he induced the plaintiff to marry him, and as a result she became pregnant. Although the plaintiff in this case did not give birth to a child as a result of the pregnancy, she did as a result suffer a hysterectomy. The relationship lasted for about twelve years. There can be no doubt that the deceit of the defendant seriously prejudiced any hope of the plaintiff for a proper marriage. Had there been a valid marriage in 1965 that broke down in 1977, the plaintiff would be entitled to claim maintenance from the defendant …" As Counsel for the Attorney General pointed out McDonald, J. did not actually award maintenance but took the possibility of maintenance into account in assessing damages.

It seems to me that in any action for deceit based on the kind of facts which have been found by the learned Circuit Court Judge in these proceedings, a court would be entitled, in awarding damages, to taken into account the statutory and other entitlements of a plaintiff who was separated from her ostensible husband and to which she would have been so entitled if in fact there had been a valid marriage.

In Meskel –v- C.I.E. Walsh, J. in considering the remedies available for breaches of constitutional rights also held "In each of these cases the injured party is entitled, in my view, to recover damages for any damage he may have suffered by reason of the dismissal or penalty resulting from his insistence upon exercising his constitutional right, or his refusal to abandon it or waive it."

A plaintiff who established similar facts to those found by the learned Circuit Court Judge, has in my view, as already indicated, a cause of action for deceit based on fraudulent misrepresentation and the damages to be awarded in such an action should be informed by the constitutional right of the injured party to recover damages necessary to vindicate that right having regard to the loss suffered by reason of being wrongfully deprived of the status of a spouse after a long period of ostensible marriage.

As regards any question arising under the Statute of Limitations Act, 1957, as amended, I consider that the submissions of the Attorney General are correct in that these may be governed by any continuing fraud or concealment on the part of a defendant of his true capacity to marry.

Having come to the conclusion that there is a remedy available to a party who finds himself or herself in the position of the applicant as set out in the facts found by the Circuit Court, it cannot be said that the application of the law as set out in Gaffney –v- Gaffney, whereby some form of remedy by way of estoppel is denied to the applicant, would, as a result, deprive her of any adequate remedy for the infringement of her rights which she has suffered.

As indicated at the outset, for the foregoing reasons and those set out in the judgment of Denham, J., the question posed by the learned Circuit Court Judge should be answered in the negative.

It has not been relevant to consider whether any conduct of the respondent as found by the learned Circuit Judge could amount to a breach of the criminal law. The Circuit Court still has seisin of the final determination of this case and it is in my view a matter for the learned Circuit Court Judge whether, in the exercise of his discretion, he considers there are any grounds for directing that the papers in this case be sent to the Director of Public Prosecutions.

THE SUPREME COURT

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989

AND IN THE MATTER OF THE FAMILY LAW ACT 1995

AND IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947

Denham J.

Murray J.

McGuinness J.

Fennelly J.

McCracken J.

BETWEEN

C.K.

APPLICANT

AND

J.K.

RESPONDENT

AND

F.McG

NOTICE PARTY

JUDGMENT delivered by Mrs Justice McGuinness on the 31st day of March 2004

This is a Consultative Case Stated for the opinion of the Court by His Honour Judge Patrick McCartan, a judge of the Circuit Court assigned to the Dublin Circuit, pursuant to section 16 of the Courts of Justice Act 1947. The Case Stated arises in proceedings where the applicant C.K. seeks a decree of judicial separation, together with ancillary relief under the Family Law Act 1995. The respondent J.K. has filed a defence and counterclaim in which he seeks a declaration of nullity due to incapacity on his part on account of his prior valid marriage to the notice party.

The Facts

The facts are fully set out in the Case Stated and in the reserved judgment of Judge McCartan delivered on the 29^th day of January 2003 and annexed by him to the Case Stated. They may be summarised as follows.

The respondent married the notice party F. McG on the 7^th September 1968. There was one child of the marriage born on the 29^th May 1969. In or about the year 1972 the marriage broke down and the parties thereafter lived separate and apart. The notice party who is a teacher by profession supported herself and the child of the marriage and appears neither to have sought nor received any form of maintenance from the respondent.

In or about 1979 the respondent met the applicant and formed a social relationship with her. The respondent also commenced work in the same company as the applicant and as a result was sent on short training courses which took place in the State of Ohio in the United States of America. At this point the respondent was anxious to marry the applicant and therefore wished to terminate his subsisting marriage with the notice party. While in Ohio he met an attorney who, on learning of the respondent's desire to be divorced, assured him that he could secure a divorce for him without any difficulty despite the absence of the necessary legal requirements of residency and other matters. Documents were prepared based on incorrect information relating to an address of residence and time spent in Franklin County in the State of Ohio. The respondent had spent two training trips in Ohio each lasting three to four weeks in the months of May and November 1981. While he was in Ohio he stayed in a local hotel.

In November 1981 the notice party was served with the respondent's application for a divorce in Ohio. She decided to ignore it as matters between her and the respondent had long been settled.

In March 1982 the respondent returned to Ohio for the final hearing of the application for a divorce. The divorce was granted based on the incorrect information furnished to the Ohio Court. Notice of the granting of the divorce decree was served on the notice party. The order of the Ohio Court included provision for maintenance to be paid for the child of the marriage but the notice party correctly anticipated that no such maintenance would be paid by the respondent. However, the notice party believed that the divorce was effective and that she was no longer the wife of the respondent.

During the period from1979 to 1982 the applicant and the respondent continued their personal relationship and were also working together in the same company. The applicant was informed by the respondent of the Ohio divorce. She believed that it was effective and that the respondent was now free to marry her.

In February/March 1983 the respondent corresponded with the Register Office in Newcastle-upon-Tyne, England, seeking to arrange a registry office marriage between himself and the applicant in that city. On 14^th March 1983 the superintendent registrar in Newcastle-upon-Tyne wrote to the respondent informing him that the registrar-general had been unable to recognise the divorce decree granted by the Court in Ohio. An accompanying letter explained that neither the respondent nor the notice party were U.S. nationals or habitually resident in the State of Ohio at the time of the divorce and both were domiciled in Ireland at the time of the divorce and that therefore the decree would not be recognised in English law. At the hearing in the Circuit Court it was in issue between the parties as to whether the applicant was aware of this correspondence. The learned Circuit Court judge found as a fact that the applicant was not aware of the correspondence and was convinced that the Ohio divorce was fully effective.

On the 25^th March 1983 the applicant and the respondent were married at the Registry Office in Dublin. The application to the registrar in Dublin was on the basis that the respondent was a bachelor. No information concerning the Ohio divorce was given to the registrar. The applicant and the respondent lived together as husband and wife for in or about seventeen years. They had two daughters born on the 24^th April 1987 and the 13^th April 1991. They purchased a family home in joint names in Co. Dublin where at the time of the hearing before the Circuit Court they continued to reside together with the children pending the determination of the judicial separation proceedings.

The relationship between the parties broke down over a period and in 1999 the applicant obtained a protection order from the District Court. On the 21^st September 2001 she issued her family law civil bill in the Circuit Court seeking judicial separation and the relevant ancillary reliefs. On the 10^th June 2002 the respondent filed his defence and counterclaim in which he sought a declaration pursuant to section 29(1) of the Family Law Act 1995 that the divorce obtained by him from the Court of Common Pleas, State of Ohio, United States of America, was not entitled to recognition in the State and a declaration pursuant to section 29(1) of the Family Law Act 1995 that the purported ceremony of marriage entered into between himself and the applicant on the 25th March 1983 was null and void and of no effect.

The Proceedings in the Circuit Court

The matter came before the Circuit Court on 22^nd January 2003 by way of a preliminary issue in the proceedings issued by the applicant. It appears that the respondent had issued a motion seeking to join F.McG as a notice party to the proceedings. The motion papers are not annexed to the Case Stated but the matter is referred to in the judgment of His Honour Judge McCartan. It appears that in granting the order joining F.McG as a notice party the Court directed that as a preliminary issue there should be a hearing as to whether the Ohio divorce was valid and carried the force of law in this jurisdiction. At that hearing submissions were made on behalf of both the applicant and the respondent in regard to the validity of the Ohio divorce in the light of the established law on the recognition of foreign decrees of divorce. In addition counsel for the applicant argued that, given the facts of the case and in particular the lapse of time since the couple were married, the respondent ought not be permitted to impugn the validity of their marriage. This argument was based on the general principles of estoppel and on the basis that justice could only be achieved in the case by giving legal recognition to the relationship between the parties which had existed for a long period of time. The learned Circuit Court judge adjourned the matter to consider these submissions and gave judgment on 29^th January 2003. As a result of his findings as expressed in his judgment he decided to state the present case for the opinion of this Court. At paragraphs 7 and 8 of the Case Stated he set out his findings in the matter as follows:

"7. I have found that in this case, given the particular facts of the case, justice can only be achieved by the use of estoppel whereby the respondent would not be allowed to challenge, at this remove, the validity of his original divorce. The particular facts that apply include:

(a) The respondent's original spouse, Ms McG was aware of the making of the application and did not object.

(b) The respondent's original spouse, Ms McG, was not adversely affected by the making of the order of divorce.

(c) The child of the respondent's marriage to Ms McG is not adversely affected by the continued existence of the divorce.

(d) If the respondent was to apply for dissolution of his first marriage today he would be entitled to a divorce in this jurisdiction without any difficulty. At the time of the granting of the Ohio divorce such a remedy as not permitted in this jurisdiction,

(e) The respondent has enjoyed the benefits and status of being both the spouse of the applicant for seventeen years and the father of two children of that marriage.

(f) The applicant and her two children would suffer significant diminution of status and reduction of financial rights should the validity of her marriage be undermined.

(g) No collusion or complicity can be laid at the feet of the applicant in the application for a licence to marry the respondent.

(h) I adjourned my decision to 29^th January 2003 so as to consider the submissions that had been made. I believe that justice between the parties can only be achieved by prohibiting or estopping the respondent for attacking the validity of his divorce and by definition the validity of his marriage to the applicant. However, given the law as stated, I accept that the concept of estoppel as a remedy, well suited to offer a solution in this case, is a judge-made and developed principle. I believe it is preferable for the parties to this action that prior to a final determination of the case that the Supreme Court be consulted on this issue."

The learned Circuit Court judge then sets the following question for the opinion of this Court:

"Whether I am entitled to hold in these proceedings as a matter of law, having regard to the findings of facts made by me, that the respondent is estopped from denying that he is married to the applicant."

The Proceedings before this Court

The Case Stated was first listed for hearing before this Court on the 3^rd June 2003. At that point the Court was informed that pursuant to section 29(4) of the Family Law Act 1995, notice had been served on the Attorney General of the respondent's application for a declaration under section 29(1) of the 1995 Act and that, subsequent to the trial judge's judgment and his decision to state a case to this Court, the Attorney General had been joined as a party to the proceedings. The Attorney General was represented by senior counsel before this Court.

In addition the Court was informed that the notice party had been present in the Circuit Court on the occasion of Judge McCartan's ruling concerning the Case Stated and that she had indicated to the Court that she wished to take no further part in the proceedings. Judge McCartan had accordingly dispensed with service on her of any further notice concerning the present application to this Court. Unfortunately there does not appear to be any copy of the orders made by the Circuit Court in either of these two matters included in the papers provided to this Court in the present proceedings.

Having considered the matter, this Court was of the view that the interest of the notice party and her child could well be affected by the outcome of the proceedings in this Court, that she should be informed of the course of the proceedings and if possible be present and/or be legally represented at the hearing of the Case Stated. The Court therefore directed that the applicant was to serve all relevant matters on the notice party and that she was to be informed of the view of the Court. The proceedings were adjourned to enable these directions to be put into effect.

Subsequently the notice party informed the Court that she could not afford to pay for legal representation and that no form of civil legal aid was available to her. She would, however, attend the hearing in person. This she did. She also put forward her views on the matter in a letter to the Court and in a brief oral submission at the hearing, to which I shall refer later.

Submissions of Counsel

At the outset it was accepted by all parties that at the date of the inception of the Ohio divorce proceedings neither the respondent nor the notice party were domiciled in Ohio. The divorce preceded the enactment of the Domicile and Recognition of Foreign Divorces Act 1986 and therefore fell to be considered under the recognition rules established by this Court in W v W [1993] 2 IR 476. It failed the test of recognition set out in that case. The decision of the High Court in G. McG v D.W. [2000] 1 IR 96 was irrelevant to the present case as neither party had at any time been ordinarily resident in Ohio.

In addition it was accepted that the Ohio divorce, like the English divorce in the case of Gaffney v Gaffney [1975] IR 133, was obtained by the making of false assertions regarding residence and other matters to the Ohio Court and was therefore of doubtful validity even in Ohio. The respondent's subsequent purported marriage to the applicant was therefore bigamous. Senior Counsel for the applicant, Mr Durcan, submitted that the respondent, in the particular circumstances of this case, should not in answer to the Applicant's claim be allowed to deny that he was validly married to her. The reason why he should be so debarred was that his conduct towards the applicant had been such that it would be inequitable and contrary to justice to allow him to rely upon such a denial. Mr Durcan drew attention to the trial judge's conclusion that justice between the parties could only be achieved by prohibiting or estopping the respondent from attacking the validity of his divorce and by definition the validity of his marriage to the applicant. The applicant's case was not that the estoppel conferred on her the status of a spouse of the respondent but rather that he was precluded in these proceedings from saying that she did not enjoy such status.

Mr Durcan went on to refer to the decisions of the High Court (Kenny J.) and of this Court in Gaffney v Gaffney [1975] IR 133. In that case there were three interrelated arguments concerning estoppel. Firstly, it was argued that the plaintiff in that case was estopped from asserting the invalidity of her English divorce by the record of the English Court. This was the only form of estoppel argued in the appeal to this Court and this Court held that the principle of estoppel by record could not apply unless the Court upon whose record the estoppel was based was competent to exercise jurisdiction. In the present case no suggestion is made that estoppel by record of the Court in Ohio could apply.

Secondly the general question arose as to whether the doctrine of estoppel could ever apply where the matter in issue was the validity of a marriage. Mr Durcan submitted that there was general agreement among the authorities that marital status per se could not be effected by a doctrine of estoppel That position was confirmed by the judgments of Kenny J. in the High Court and of Walsh J. in the Supreme Court in the Gaffney case. Mr Durcan was not suggesting in the present case that the applicant could acquire the status of a wife by means of a doctrine of estoppel. Thus the argument which he was making, he said, did not require a rejection of the decision of this Court in Gaffney v Gaffney.

The third and most difficult question concerning estoppel was whether a spouse who had obtained a foreign divorce could later claim that it should not be recognised so that he or she could obtain some pecuniary advantage as against his or her spouse or their estate. This question was examined by Kenny J. in the High Court who was of the view that a spouse was not estopped from denying the validity of a divorce even if the purpose and effect of such denial were to obtain a pecuniary advantage as against the other spouse and the gaining of such advantage would be inequitable in the particular circumstances. In reaching this view, Mr Durcan said, Mr Justice Kenny based his judgment to a considerable extent on the proposition that it would be extremely undesirable if a person was married for certain purposes but unmarried for others. Mr Durcan however suggested that the application of the principle of estoppel would not have the effect which was contemplated by Mr Justice Kenny. The application of the doctrine of estoppel which was argued on behalf of the applicant was not to hold that the foreign divorce had effected a change in the status of the parties but to hold that the original assertion of its validity by a spouse may be a sound reason for denying that spouse a specific remedy. The issue of status would not be affected – the divorce could not be recognised. But a particular remedy which would normally flow from the non-recognition of the divorce would be denied.

Mr Durcan argued that on account of the many social and legal developments in the field of family law that had occurred since 1975 it was desirable that this Court should re-consider the question of the application of the principle of estoppel in the limited circumstances outlined above. He pointed out that in the absence of divorce in this jurisdiction a considerable number of people applied for divorces in foreign jurisdictions, often when they had little or no link with the jurisdictions in question. They then entered into new marriages and often lived with their new partner for many years displaying all the normal characteristics of family life. It was inevitable that difficult cases would emerge where litigants would attempt to gain an unfair advantage from their particular status. It was right that the law should give an appropriate remedy to defeat such efforts.

Mr Durcan went on to refer to the use of estoppel to prevent a litigant denying the validity of a marriage in unconscionable circumstances in the law in the United States and Canada. He referred to the American Law Institute Re-Statement of the Law from 1934 onwards and in particular to the cases of Mayer v Mayer [1995] 66 N.C.App. 522 (a North Carolina case) and Downtown v Royal Trust Company et al. (1972) (34) D.L.R. (3d) 403, a judgment of the Supreme Court of Canada.

In oral submissions before this Court Mr Durcan relied to a considerable extent on the distinction between judgments and decisions that were in personam and those which were in rem. He argued that in the family law regime in this jurisdiction the application of the in camera rule was so strict that the vast majority of orders were made in personam and had application only to the parties involved in the litigation. Under the legislation and the Court rules there was no necessity for notice to be given to third parties or to the world in general of the orders made in family law proceedings and indeed on the present interpretation of the in camera rule such publication was in fact forbidden. This was in contrast to the position in the English jurisdiction where both the legislation and the rules gave an important role to decrees being pronounced in open Court, to the public interest role of the Queen's Proctor, and to the issuing of the decree nisi. Even if it were accepted that a decree of divorce made under the 1996 Act was a judgment in rem since it altered the status of the parties, Mr Durcan argued that a decree of judicial separation (which could, under section 8 of the Judicial Separation and Family Law Reform Act, 1989, be rescinded by consent of the parties) and the ancillary orders made under such a decree were orders in personam. The doctrine of estoppel could therefore be more readily applied in judicial separation proceedings which did not alter the marital status of the parties.

Senior Counsel for the applicant also referred to the provisions of section 29 of the Family Law Act 1995, the effect of which has been considered by this Court in G. McG v D.W. (No. 2) [2000] 4 IR 1. It was clear that declarations pursuant to section 29 of the Act of 1995 operated in personam rather than in rem. Such declarations were binding on "the State" only if the Attorney General had been made a party to the proceedings (section 29(8)). Thus many declarations made under section 29(1) as to the validity or otherwise of a marriage would be binding only on the parties to the proceedings – a situation not unlike that which was so strongly condemned by Kenny J. in Gaffney's case, a situation where a person could find himself married for some purposes and unmarried for others. Section 29 had introduced into our law in relation to marital status the concept that a declaration could be binding on some but not on all, on the parties but not on the world. Once it was accepted in law, as it was in section 29, that a person or persons could be obliged and bound at law to accept a particular individual as married or unmarried, while other persons were no so obliged or bound, then the arguments for refusing to apply the concept of estoppel at all in the area of marital status substantially disappeared.

In conclusion Mr Durcan argued that the fundamental submission of the applicant that it was possible by using the doctrine of estoppel to being about a just result as between herself and the respondent while not altering the status of any of the parties to these proceedings by reason of such estoppel. He pointed out that in very similar circumstances in the case of W v W [1993] 2 IR 476 at 495 Egan J. had said:

"The defendant in this case participated in a solemn ceremony with the plaintiff which quite clearly they treated as being a valid marriage as a consequence of which four children were born. He ought not now in any event be entitled to argue that it was a nullity."

Senior Counsel for the respondent, Mr Hogan, firstly stressed the nature of the proceedings brought by the applicant. The endorsement of claim on her Family Law Civil Bill opened with an assertion that she and the respondent were lawfully married on the 25^th day of March 1983. The reliefs which were sought by her were sought on the basis of her marriage with the respondent. The reliefs which were sought were statutory reliefs as set out in the Family Law Act 1995. Her proceedings were clearly not purely private law proceedings but were proceedings brought within a statutory framework contained both in the Judicial Separation and Family Reform Act 1989 and in the Family Law Act 1995. She now sought through the means of an estoppel to circumvent the fact that her purported marriage to the respondent was void ab initio. In order to obtain the relief of judicial separation the Circuit Court must hold firstly that she and the respondent were legally married and secondly that, as set out in paragraph 6 of her endorsement of claim, that the marriage between the parties had broken down to the extent that no normal marital relationship had existed between them for at least one year prior to the date of the application, or, in the alternative that the respondent had behaved in such a way that the applicant could not reasonably be expected to live with him. Not until the Court had decided these matters could the Court grant the ancillary financial and other reliefs sought by the applicant.

Mr Hogan went on to analyse the ratio of the decision in Gaffney v Gaffney [1975] IR 133. He submitted that it was clear from the judgments in Gaffney that there could be no question of an estoppel to prevent a party demonstrating that a foreign divorce decree was given without jurisdiction. This was the clear ratio decidendi of that decision. While the Supreme Court appeal had been argued and decided on a somewhat narrower ground there was no question of this Court overturning or disagreeing with the decision of Kenny J. in the High Court in regard to the appropriateness of estoppel in the circumstances of that case. Accordingly, Mr Hogan argued, unless Gaffney was to be overruled it was the governing authority which compelled the learned Circuit Court judge to rule that the Ohio divorce was given without jurisdiction and was invalid. The doctrine concerning estoppel in matrimonial proceedings as set out in Gaffney was inconsistent with the American authority contained in Mayer v Mayer and the American Law Institute Restatement of the Law. It was also totally contrary to the preclusion doctrine as operated from time to time by the Canadian Courts.

In dealing with the question as to whether the decision in Gaffney v Gaffney should be overruled, Mr Hogan referred to a number of cases regarding the precedential effect of earlier authorities, including Mogul of Ireland v Tipperary (NR) County Council [1976] IR 260, Re Illegal Immigrants) (Trafficking) Bill [2000] 2 IR 360 and O'Brien v Miller Group Newspapers Limited [2001] 1 IR 1 and D.H. v Groarke (unreported Supreme Court 31^st July 2002). Counsel for the respondent submitted that the social and legal developments which had taken place since 1976 could not in themselves justify the reversal of a major decision of the first importance in the area of family law. No key arguments were overlooked in Gaffney and there were no compelling reasons while it should now be overruled. On the contrary if it were to be overruled it would lead to results just as anomalous in 2003 as they were in 1975.

Mr Hogan also stressed the overwhelming public interest in certainty in regard to the status of marriage which might on occasion lead to injustice in individual cases.

With regard to the nature of orders and judgments in matrimonial matters counsel for the respondent submitted that despite the fact that a decree of divorce was issued by a Court sitting in camera it was clear that such a decree must be a decree in rem. It was made not only on a statutory but on a constitutional basis; it affected the status of the parties and had numerous public effects. It might be argued that a decree of judicial separation had certain hybrid qualities especially with regard to its "divorce a mensa et thoro aspects" but it must be accepted that the statutory jurisdiction to grant the decree and the reliefs ancillary thereto was based on the status of marriage and it was therefore a decree in rem. Mr Hogan also referred briefly to declarations under section 29 of the Act of 1995 and admitted that the section was somewhat peculiarly worded. He suggested that it was a derogation from the rule that all orders regarding matrimonial status are orders in rem.

Senior counsel for the Attorney General Ms O'Toole adopted the submissions made by Mr Hogan. In addition she emphasised the overriding public interest in certainty in questions of marital status. She referred to the commentary by Dicey and Morris (Conflicts of Law 13^th edition vol 2 page 762) on the Canadian case of Downton v Royal Trust Company on which Mr Durcan had relied in his argument. Ms O'Toole pointed out that in that case the Supreme Court of Canada had drawn a sharp distinction between "strictly matrimonial causes" and other types of case. It had observed that "any ethical factors underlying the preclusion doctrine are submerged in overriding considerations when an invalid divorce decree is pressed in a strictly matrimonial cause", for "marital status per se cannot be altered or perpetuated by a preclusion doctrine". Dicey and Morris had commented that "the difficulty is, as American and Canadian Courts have discovered, that if fixed rules of law are departed from in the interest of justice in the individual case, all certainty in questions of marital status is lost".

Ms O'Toole went on to draw attention to the importance of the constitutional status of marriage as emphasised in Article 41 of the Constitution. Inalienable and imprescriptible rights flowed from that status. This had been referred to by Walsh J. in Gaffney v Gaffney where he said (at page 152):-

"The paramount issue in the present case is the status of the plaintiff and her husband at the date of his death. The plaintiff was either his wife or she was not. Apart from other legal incidents in this country, certain constitutional rights may accrue to a woman by virtue of being a wife which would not be available to her if she were not. The matter cannot therefore by any rule of evidence be left in a position of doubt nor could the Court countenance a doctrine of estoppel, if such existed, which had the effect that a person could be estopped from saying that he or she is the husband or wife, as the case may be of another party, when in law the person making that claim has that status."

Ms O'Toole submitted that Walsh J's dictum was the definitive statement of the law in relation to the issue of estoppel. For the Court to grant to the applicant the order for which she contended would lead only to further confusion between the spouses as to the validity or otherwise of their marriages and bring about a state of great uncertainty.

Ms O'Toole went on to refer to the various taxation and other provisions of public law which flow from the status of marriage. If, through the operation of an estoppel, the applicant was granted a decree of judicial separation and, for example, a property adjustment order by which she made a capital gain, were the Revenue Commissioners to treat this capital gain as being one from a husband to a wife or from one unmarried partner to another? This was but one example of the type of anomaly that could arise.

On the other hand Counsel for the Attorney General fully acknowledged the injustice of the applicant's position in the circumstances. She suggested that there were alternative remedies opened to the applicant and in particular suggested that the applicant could rely on an action alleging the tort of deceit the elements of which were set out in Derry v Peek [1889] 14 App Cas 337 and more recently by Shanley J. in Forshall v Walsh (unreported, High Court, 18^th June 1997). In putting forward this possible solution Ms O'Toole referred to the Canadian cases of Graham v Saville [1945] 2 DLR 489 and Beaulne v Ricketts [1979] 90 60 LR (3d) 550, and also to the English case of Shaw v Shaw [1954] QB 429. She suggested that the measure of damages in such an action would be such that would restore the innocent party to the position she would have been in if the misrepresentation had not been made.

Commenting on section 29 (8) of the Family Law Act 1995, Ms O'Toole submitted that the purpose of section 29(8) was to ensure that the State would not be bound by judgments where its interest had not been represented, given the public interest in matters relating to the marital status of individuals. Thus, if there was any question of fraud, collusion or possibly even new evidence going to the res of a judgment, the State could intervene in the proceedings in the public interest, and bring the matter back before the original tribunal for review.

The notice party, F.McG, put her personal position in regard to the proceedings before the Court by way of a letter addressed to the Registrar of this Court dated 9^th October 2003. In the course of this letter she stated:-

"I wish to notify the Court that it is not my intention to be legally represented at the hearing on October 29^th/30^th. The Court will be aware that the Office of the Attorney General has refused me legal costs. My financial situation is such that I am not in a position to meet the costs likely to be incurred in a two day hearing in the Supreme Court. The Court may wish to take into consideration that both applicant and respondent in the case are in receipt of full free legal aid.

I will be present in Court on both days of the hearing to answer questions the Court may wish to put to me and to co-operate in any way possible with the proceedings. In the meantime I wish to reiterate, as previously stated in the Family Court, that I have no interest in being further involved in this case. My clear understanding of my position is that I am legally divorced from J.K. Should the Court find to the contrary, I would request that the Court direct J.K. to immediately instigate divorce proceedings so that my position can be legally established under Irish law."

At the hearing before this Court there was some brief discussion between the members of the Court and the notice party who appeared in person but nothing of substance was added to the position of the notice party as set out in her admirably clear letter.

The Law and Conclusions

It is clear beyond question that the decree of divorce between the respondent and the notice party pronounced by the Court of Common Pleas of the State of Ohio in 1982 cannot be recognised in this jurisdiction. Neither the respondent nor the notice party was domiciled, or indeed resident, in Ohio at the time of the inception of the divorce proceedings. The divorce was obtained through the making of false and fraudulent claims by the respondent as to his residence. The Ohio Court was misled as to its jurisdiction. It was in precisely the same position as was the English Court in the case of Gaffney v Gaffney. No argument for the validity of this divorce has been made by the applicant. Nor has any argument been made by the applicant that an estoppel arises by reason of the record of the Ohio Court.

As far as marital status is concerned, therefore, the respondent and the notice party are husband and wife and the applicant's purported marriage to the respondent is void. This situation gives rise to considerable injustice not only to the applicant but also to the notice party who, as can be seen from her letter, has for the past twenty years believed herself to be divorced from her husband and has conducted her life and that of her child accordingly.

The respondent has by his actions created this situation. He knowingly defrauded the Ohio Court. He subsequently discovered from the English authorities that his Ohio divorce was not recognisable in that jurisdiction. Rather than, at the very least, taking legal advice as to his position in this jurisdiction, he concealed the English correspondence from the applicant. He then committed bigamy by entering into a purported marriage with the applicant. He was enabled to do this by untruthfully asserting to the marriage registrar that he was a bachelor. Dicey and Morris (Conflicts of Law 13^th edition volume 2 page 762), commenting on the fact that there is very little English authority on a doctrine of preclusion or estoppel in matrimonial cases, add that "it should be pointed out, however, that the English Courts have not yet been confronted with such starkly unmeritorious claims as the American and Canadian Courts have sometimes been."

It is difficult to imagine a more "starkly unmeritorious" claim than that of the respondent in the present proceedings. Not only does he seek a declaration of nullity as a defence against any financial claim which the applicant might have against him, he also in his counterclaim seeks financial relief against the applicant, including the transfer to him of her interest in the home which they have shared for the past seventeen years. The conclusions reached by the learned Circuit Court judge in regard to the justice of the case are therefore more than understandable. The question for this Court, however, must be whether the solution proposed by Judge McCartan is, in law, permissible.

The applicant through her counsel argues that the decree of judicial separation and the ancillary orders which she seeks are orders in personam against the respondent. She does not seek to alter the present marital status of any of the parties to this action and therefore, it is argued, she does not seek to overturn the decision of this Court in Gaffney v Gaffney. What she submits is that the respondent, because of his conduct, should be denied the specific defence which would normally flow from the actual marital status of the parties.

As far as the decision in Gaffney's case is concerned, the chief difficulty in the way of the applicant's argument lies not so much in the judgments of this Court as in that of Kenny J. in the High Court. At pages 141 to 142 of the Report the learned judge considered the question of estoppel arising in particular circumstances for the purposes of the law of succession. He said:

"The findings that the divorce a vinculo was obtained by fraud and by duress and that the agreement of April 1964 was procured by duress dispose of the defendant's contentions but, as these findings may not find favour in a higher court, I think that I should deal with the interesting question whether a spouse domiciled in one State who obtains an invalid divorce in another State is estopped in the State of the domicile from establishing that the divorce was invalid and that she should be regarded as the spouse for the purposes of succession. There is no Irish or English authority on the matter but it has been considered in the United States of America and in Canada.

If the matter be considered on principle, there are startling consequences if it be held that a spouse domiciled in one State who obtains an invalid divorce in another State is estopped in the State of the domicile from establishing that the divorce was invalid, and that she should not be regarded as the spouse for the purposes of succession. Bigamy is an extra territorial defence – see section 57 of the Offences Against the Person Act 1861 as interpreted in Earl Russell's Case. [1901] AC 446. If the husband had been prosecuted in the Republic of Ireland for bigamy and the invalidity of the English divorce had been established, the jury would have had to convict him because a belief on reasonable grounds (if he had it) that he had been divorced, when in fact he had not, is not a defence to such a charge: R v Wheat [1921] 2 KB 119. The result then would be that while the plaintiff would be prevented from proving the invalidity of the divorce, the husband would have been convicted of bigamy. If there had been children of the second marriage and if the husband died intestate (as he did), the plaintiff could not have disputed their legitimacy; but the children of the first marriage could have done so as the estoppel would bind the plaintiff only, and could have excluded the children of the second marriage from any benefit by succession. Other remarkable consequences of this estoppel applied to marriage are described by Mr Justice Megarry in 'A Second Miscellany at Law' at pages 211 and 212. If the law is to avoid these ridiculous consequences, it seems to me that on principle the doctrine of estoppel does not apply to the question of the existence of a valid marriage or the status of being married though it may apply in relation to property rights between husband and wife."

Kenny J's approach to this form of estoppel was criticised at the time by the academic commentator Mr William Duncan in the Irish Jurist [1974] 9 Ir. Jur( n.s.) 59. At page 61 of his article Mr Duncan writes:-

"In his judgment in the High Court Kenny J. dealt with this issue at much greater length. Indeed he would have regarded this as the crucial issue had the English divorce not already been vitiated by duress. His opinion (one which he affirmed in C v C (High Court July 1973 unreported)) was that a spouse is not estopped from denying the validity of her divorce even where the denial is made to secure an advantage in respect of the estate of the other spouse.

In reaching this conclusion, he rejected a majority decision of the Supreme Court of Alberta in Re Plummer [1942] 1 DLR 34, where it was held that a wife who had obtained a divorce in the State of Washington was estopped from denying its validity for the purpose of taking a widow's share in her husband's estate. The decision in Re Plummer was based, in part, upon an uneasy distinction between the effects in personam and the effects in rem of a foreign divorce. Estoppel could operate as regards the former but not as regards the latter. Kenny J., rightly, it is submitted, rejected this distinction as being 'without meaning' and as giving rise to a number of anomalies.

However, the rejection of this distinction does not dispose of all the arguments in favour of an estoppel operating in limited circumstances. The doctrine of estoppel is based on the principle of justice that an individual may not deny a fact which he has already asserted in order to gain an unfair advantage over another. It could be argued, therefore, that the doctrine should be applied, not so much to the effects in personam of a foreign divorce, but in any case where a spouse has asserted, and later denied, the validity of a divorce in order to obtain an unfair personal advantage. Moreover, the argument raised by Kenny J. that, as a result of this doctrine, a person may find himself married for some purposes and unmarried for others is not a good one. What the Court does when it applies the doctrine of estoppel to a foreign divorce is not to hold that the foreign divorce had effected a change in the status of the parties, but to hold that the original assertion of its validity by a spouse may be a sound reason for denying that spouse's specific remedy. The issue of status is not affected – the divorce cannot be recognised. But a particular remedy which would normally flow from the non-recognition of the divorce is denied."

Professor William Binchy, in his book "Irish Conflicts of Law "takes a somewhat similar approach to that of Mr Duncan. In an analysis of the judgments in Gaffney v Gaffney he refers to the question of estoppel by conduct, putting the question "if a spouse who has participated actively in foreign divorce proceedings, by petitioning or by consenting to the granting of a decree, later seeks to challenge the validity of the divorce, in what (if any) circumstances will he or she be estopped from doing so?" Professor Binchy accepts that both Walsh J. in this Court and Kenny J. in the High Court rejected this form of estoppel in Gaffney's case. Commenting on the passage in Kenny J's judgment already quoted above Professor Binchy writes:-

"One can legitimately doubt whether the consequences of giving at least some effect to the estoppel defence would be as 'ridiculous' as Kenny J states. There is, of course, a strong argument for people retaining a consistent status in public law – for voting, income tax, citizenship and so on; but there is an equally strong argument that, where private rights are concerned, a party should not be allowed to 'approbate and reprobate' – to assert the validity of the divorce in one context and its invalidity in another. If a spouse has obtained a foreign divorce, and no question of duress arises, why should it be unjust or socially dangerous for the Court to hold that he or she was estopped from later asserting maintenance or succession rights against his or her former spouse?"

The course thus advocated by Mr Duncan and Professor Binchy has been followed in a number of cases by the Courts of the United States and of Canada. In his argument, counsel for the applicant relied in particular on three cases – Krause v Krause 282 NY 355, Mayer v Mayer 66 NC App. 552, and Downton v Royal Trust Company & Al [1972] 34 DLR (3d) 403.

In the first of these cases the defendant who, with his wife, was domiciled in New York went to a foreign State and procured a divorce. His wife neither entered an appearance nor was personally served in that action and at all times remained a resident of New York. Subsequently the defendant married the plaintiff and lived with her as his wife for six years. He then abandoned her. In her action for a separation his defence that he lacked capacity to marry the plaintiff on account of the invalidity of his foreign divorce was struck out. The Court held that the defendant might not be heard to assert in that action that the judgment of divorce which he sought and obtained failed of its purpose and thereby did not give to the defendant that freedom to remarry which he appeared to possess by virtue of that judgment . As a result the defendant was required to provide financial support for both his wife and for the plaintiff in the action. At page 359 of the judgment of the Court of Appeal of New York Finch J. reviewed a number of cases in which varying decisions in regard to such an estoppel had been made. He went on to say:

"We come, then, to a consideration of the principle applicable in the case at bar. We cannot lose sight of the fact that the present defendant was himself the party who had obtained the decree of divorce which he now asserts to be invalid and repudiates in order that he may now disown any legal obligation to support the plaintiff, whom he purported to marry. To refuse to permit this defendant to escape his obligation to support the plaintiff does not mean that the courts of this State recognise as valid a judgment of divorce which necessarily is assumed to be invalid in the case at bar, but only that it is not open to the defendant in these proceedings to avoid the responsibility which he voluntarily incurred. It is conceded that the estoppel which is invoked against the present defendant is not a true estoppel as that term is ordinarily understood, although the effect is the same in the case at bar.

But it is urged that even though the prior authorities in this State do not compel a contrary result, a different conclusion should be reached as a matter of principle. It is said that public policy requires that the interest of the State in the first marriage be protected even that may also give the individual defendant an incidental advantage to which he is not entitled in his private right. Thus the defendant seeks to avoid the obligation which he has purported to undertake to support his second wife, upon the pretext that such is inconsistent with his obligations towards his first wife. Objection upon this score is fully met by the fact that the needs of his first wife are to be taken into account in arriving at the ability of the defendant to support the plaintiff in the case at bar. Defendant would altogether disallow any obligation towards this plaintiff because of his obligation to his first wife. The results which we reach here is the only one which awards justice to this plaintiff, prevents her from becoming a public charge if she should be impecunious and at the same time protects the first wife in adequate degree. Thus there is complete observance of not only the interest of the State and the protection of the first marriage, but also of the other interest of the State that marriage obligations shall not be likely undertaken and lightly discarded."

In Mayer v Mayer (66 N.C.A. pp. 522) the Court of Appeals of North Carolina recognised the doctrine of equitable estoppel to the extent that the husband, who encouraged the wife to obtain a divorce from her prior spouse, was estopped from questioning the validity of the prior divorce decree. The Court held that, although the wife's Dominican divorce decree was invalid, the husband was estopped from asserting as a defence the invalidity of the wife's prior divorce, and the wife was entitled to alimony pendente lite and reasonable attornies' fees.

The judgment of the Court was delivered by Judge Charles L. Becton. Under the heading Estoppel the Court stated:-

"The question, squarely presented by these contentions, is whether a husband, who actively participates in his wife's procurement of an invalid divorce from her prior husband is estopped from denying the validity of that divorce. After a careful balancing of legal and policy considerations, we answer that question 'yes'…..Under quasi estoppel doctrine, one is not permitted to injure another by taking a position inconsistent with prior conduct, regardless of whether the person had actually relied upon that conduct…….

The development of quasi-estoppel doctrine is reflected in the Restatement (Second) Conflict of Laws paragraph 74 (1971), which states that:

'A person may be precluded from attacking the validity of a foreign divorce if, under the circumstances, it will be inequitable for him to do so.'"

The case of Downton v Royal Trust Company & Al. 34D. L.R. (3d) 403 was decided by the Supreme Court of Canada in 1972. In that case the appellant married the deceased in 1948. The parties separated in 1960 and at that time entered into a separation agreement. In 1965 the deceased went to Nevada to obtain a divorce. The terms of the separation agreement were incorporated in the divorce decree and the appellant by power of attorney appeared in the divorce action. After the divorce was granted the deceased remarried. Upon the death of the deceased the appellant sought to share in his estate pursuant to the provisions of the Newfoundland Family Relief Act 1962. On appeal the Supreme Court of Canada held that although the Nevada Divorce Decree would not be recognised in Newfoundland and as a result the appellant remained the lawful widow of the deceased, the controlling issue was whether she was precluded from asserting that status. The Court held that she was so precluded.

The judgment of the Court was delivered by Laskin J. who in his judgment carried out an extensive survey of what were described as "divided decisions" in that branch of the law. At page 7 of the report Laskin summarised his survey and his conclusions as follows:

"My canvass of typical cases which have reached Canadian courts indicates that the only claim to consistency that they exhibit is the application of a preclusion doctrine against a spouse who, having obtained a decree of divorce or nullity from a foreign court incompetent to give it, seeks thereafter to assert that incompetence in order to gain a pecuniary advantage against his or her spouse or the estate of the spouse. The doctrine has an ethical basis: a refusal to permit a person to insist, to his or her pecuniary advantage, on a relationship which that person has previously deliberately sought to terminate. The ethical basis is lost, however, where there has been both invocation and submission to the foreign jurisdiction by the respective spouses; and if there is to be a modification or rejection of the preclusion doctrine in respect of one or both of the spouses, other considerations must be brought into account; there may be, for example, an alleviating explanation for the submission to the jurisdiction of an incompetent foreign court. So too, where third parties are involved in a case where a spouse who has obtained an invalid foreign divorce or decree of nullity seeks to rely on its invalidity.

Any ethical factors underlying the preclusion doctrine are submerged in overriding considerations when an invalid foreign decree is pressed in a strictly matrimonial cause in which divorce or nullity is sought. Marital status per se cannot be altered or perpetuated by a preclusion doctrine, and hence, as in Schwebel v Schwebel [1970] 10 DLR (3d) 742, [1970] 2 O.R. 354, 2 R.F.L. 45 (Ont.), a spouse should not be denied the right to seek a divorce before a competent court merely because that spouse earlier invoked the jurisdiction of an incompetent foreign court.

This result appears to me to be consistent with a public policy which today more than before recognises that parties whose marriage has failed should be allowed to dissolve it. I see no inconsistency between this position and the application of a preclusion doctrine against a spouse who has ignored the jurisdictional requirements for a valid dissolution and who would nonetheless insist to his or her own pecuniary advantage that the law be applied strictly in his or her favour in disregard of an attempted dissolution which is invalid."

In the circumstances of the present case there is no doubt that the course advocated by Mr Durcan and, indeed, by the learned Circuit Court judge, has many attractions. Not least of these is that it would provide a remedy for the grievous wrong which the applicant has suffered at the hands of the respondent. It is not, however, without its difficulties.

In oral argument on behalf of the applicant it was strongly contended that orders in family law cases generally were made only in personam; that they were, as it were, shut off from the world at large by the operation of the in camera rule as expressed both in the family law statutes and in the relevant Court rules. This argument, if it is to have any reality, has to be seen in the context of the current extremely strict interpretation of the in camera rule – an interpretation which has yet to be considered by this Court. One cannot but be aware, also, that there are at present proposals for imminent legislative change in regard to certain of the more restrictive features of this rule. For example, in the Civil Registration Act, 2004, which was enacted on 27^th February 2004, Part 7 (section 59) of the Act provides for a full system of registration of decrees of divorce and decrees of nullity. In argument, counsel for the applicant appeared to accept that a decision affecting matrimonial status – for example a decree of divorce, must be addressed to the public at large and is a decision in rem. This is clearly correct.

A decree of judicial separation does not alter the matrimonial status of the parties, and it is true that it may be rescinded consent of the parties pursuant to section 8 of the Act of 1989. However, many of the financial and property provisions ancillary to a decree require interaction either with third parties such as pension trustees or with public bodies such as the Land Registry or the Revenue Commissioners. These public interest aspects of the situation have been drawn to the attention of the Court by counsel for the Attorney General. It is difficult to accept that such a decree is purely a private law matter.

In addition, the operation of a preclusion doctrine in this type of case, while endeavouring to do justice to the second partner, may result in injustice to the legal wife. The learned Circuit judge in his judgment in the present case makes it clear that in his view on the facts no injustice will be done to the notice party by the operation of an estoppel against the respondent. This may be so, and no doubt it can also be argued that such an estoppel would operate only where the particular circumstances of the case would render it equitable. Nevertheless if this Court is to accept what is in effect a new doctrine of preclusion, it is hardly sufficient to base it solely on the singular facts of one individual case.

As has been pointed out to the Court by counsel, due to the unavailability of divorce in this jurisdiction until recent times, a considerable number of persons are involved in situations where a second purported marriage has followed on an invalid prior foreign divorce. The applicant is by no means alone in her unenviable position. Thus the Court must consider in general terms the potential effect of the introduction of an estoppel of the type sought by the applicant, which would in future be open to application by Family Law Courts whenever the Court considered it equitable in the circumstances of the case.

The general approach of the United States and Canadian Courts has not been immune to criticism, particularly on the grounds of its uncertainty and inconsistency. Becton J. himself, in the introduction to his judgment in Mayer v Mayer notes that:-

"The concept of foreign country migratory divorces for American domiciliaries – with its jurisdictional and public policy defects; its alleged 'defence' of estoppel; and with one exception piled upon another – has become so confusing to the lay public and the practising Bar that very few people adequately understand the underlying ramifications and liabilities involved in such divorces."

In the judgment of the Canadian Supreme Court in Downton, Laskin J. , in the passage quoted above, speaks of "the only claim to consistency" being a narrow application of the preclusion doctrine, and goes on to exclude the operation of that doctrine in what are described as "strictly matrimonial causes", in which divorce or nullity is sought.

Dicey and Morris (Conflict of Laws 13^th ed, volume 2 page 761):-

"A difficult question is whether a spouse who has obtained an invalid foreign divorce, or remarried on the strength of one obtained by the other spouse, is 'estopped' or precluded from denying its validity in subsequent proceedings in England. Suppose, for example, that a husband and wife are domiciled and habitually resident in England, and that the wife obtains an invalid foreign divorce, and then claims a widow's share on the death of her husband intestate. Or suppose that the husband obtains an invalid foreign divorce, remarries, and then seeks to escape from his financial obligations to his second wife by alleging that the divorce, and therefore the remarriage, is invalid. It would seem inequitable to allow such unmeritorious claims to succeed. But the difficulty is, as American and Canadian Courts have discovered, that if fixed rules of law are departed from in the interests of justice in the individual case, all certainty in questions of marital status is lost."

The learned authors go on to point out that there is very little English authority on this question, and all of it is hostile to the adoption of a doctrine of preclusion or estoppel.

As has already being noted, Kenny J. in Gaffney's case specifically rejected the approach of the Supreme Court of Alberta in Re Plummer.

In my view there is considerable difficulty in the distinction made in Downton between "strictly matrimonial causes" and other cases in which the preclusion doctrine applies. In the present case, for example, the applicant argues that the preclusion doctrine should apply in her judicial separation proceedings. Yet the respondent in the same proceedings by way of counterclaim seeks a decree of nullity which is, presumably, a "strictly matrimonial cause" . Are the present proceedings as a whole, therefore, a "strictly matrimonial cause" or not?

The notice party, whatever be the outcome of the applicant's proceedings, clearly cannot rely as she has hitherto done on the validity of the Ohio divorce. As can be seen from her letter she wishes to obtain a divorce in this jurisdiction from the respondent (for which she appears to have the clearest grounds). Her divorce proceedings would also be a "strictly matrimonial cause",

Thus within one set of circumstances two forms of relief could be sought which are essentially based on the invalidity of the foreign divorce, while in the applicant's proceedings no reliance could be placed on the invalidity of the same foreign divorce if a doctrine of estoppel or preclusion is accepted. The application of this principle would, it seems to me, be likely to cause confusion and inconsistency in future cases where the factual circumstances might not be so clear as in the present case.

Both counsel for the respondent and counsel for the Attorney General laid stress on the importance of certainty in regard to the marital status of individuals and of couples. Rules regarding the recognition of foreign divorces, and hence the resulting marital status of the parties to such divorces, should be readily ascertainable and clear. To permit the operation of an estoppel as sought by the applicant would, they argued, lead to uncertainty as to the marital status of those who had obtained foreign divorces.

This argument would, in my view, carry more weight if there was in reality any great degree of clarity and certainty in the current law in this field. As it is, the marital status of certain persons is governed by the Domicile and Recognition of Foreign Divorces Act 1986; that of others by the decision of this Court in W v W [1993] 2 IR 476. Our own legislation bases jurisdiction in judicial separation, divorce and nullity on "ordinary residence" for a period of one year in addition to jurisdiction based on domicile. (See Judicial Separation and Family Law Reform Act 1989 section 31(4), Family Law (Divorce) Act 1996 section 39, Family Law Act 1995 section 39). The marital status of some may, or perhaps may not, be affected by the judgments of the High Court in G.McG v D.W. [2000] 1 IR 96 and D.T. v E.L. [2002] 2 ILRM 152. Those who have obtained divorces which were initiated in Member States of the European Union since 1^st March 2001 are governed by an entirely different regime, that of Council Regulation (EC 1347/2000) of 29^th May 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of Both Spouses, generally known as Brussels II. This regime of recognition bases jurisdiction in the main on habitual residence, although a subsidiary alternative role is played by domicile and/or nationality. Presumably this recognition regime will later this year be extended to the ten new Member States. Brussels II does not, however, apply to Denmark. In certain cases the Regulation may apply to divorces obtained after 1^st March 2001 where proceedings were instituted before that date, but this is quite uncertain.

To all this must be added the inherent complexity of the law of domicile, which over the years has led to much litigation. Still further uncertainty may be added by the provisions of section 29 of the Family Law Act 1995 which appears to mean that a declaration of marital status made by the Court will affect the parties in all cases but will not affect the State unless the Attorney General has been a party to the action. Bearing all this in mind it is not really surprising that a recent conference a lecture by Mr Alan Shatter, author of "Family Law in the Republic of Ireland", on the recognition of foreign divorces was entitled "The Application of Chaos Theory".

In these circumstances I would find it difficult to be swayed by any argument in the present proceedings based on the desirability of certainty regarding matrimonial status. Certainty may well be desirable, bit it does not at present exist.

As I have acknowledged earlier in this judgment, a considerable number of persons in this country are involved in situations where a second marriage has followed on a prior foreign divorce which is possibly invalid. Such persons may well find themselves in a position comparable to that of the applicant. It is not satisfactory for the Court to deal with these complex and anomalous situations on a case by case basis, whether through the principles of estoppel or otherwise. It would be preferable that legislation be enacted both to create a clear and consistent code of recognition and to provide a remedy for persons who through no fault of their own have become parties to a marriage which later proves to be invalid.

Both counsel for the respondent and counsel for the Attorney General in their submissions point in particular to the actual nature of the applicant's judicial separation proceedings, which are statutory proceedings brought under the Judicial Separation and Family Reform Act 1989 and the Family Law Act 1995. This, it seems to me, is the kernel of the matter. The applicant in reality seeks through the means of estoppel to obtain certain orders in regard to maintenance and, more importantly, to property. These orders, however, can only be obtained as a result of, and ancillary to, a decree of judicial separation. In order to grant such a decree the Court must itself hold (a) that the parties were legally married and (b) that the marriage has broken down on the grounds set out in section 2 of the Judicial Separation and Family Law Reform Act 1989.

In a powerful dissent in the case of Krause v Krause, Loughran J. begins his judgment by saying:

"The complaint states in orthodox form a cause of action by a wife against her husband for a separation. 'In every action for separation the primary fact to be proved is an existing marriage between the parties.' (Fischer v Fischer, 254 N.Y. 463, 466)."

He reviews a number of cases where a claim based on estoppel was rejected. At page 364 of the report Loughran J. concludes:

"The present plaintiff does not sue for support merely. A wife has no such remedy in this State. (Johnson v Johnson 205 NY 561). This action is a purely statutory action for a separation…Any suggestion that the Court should in some fashion take account of the needs of the defendant's first wife (who is not a party) cannot alter the case. This action is a matrimonial action. (Civ. Prac. Act, art. 70)….My conclusion is that the defence here challenged is valid. It may be that the law will be bettered by the contrary ruling that the defendant must stand by a relationship with the plaintiff which she is free (and always was free) to nullify….But it is not the function of courts to make such supposed improvements. Their general duty is not to change but to work out the principles already sanctioned by the practice of the past. No one supposes that a judge is at liberty to decide with sole reference even to his strongest convictions of policy and right. His duty in general is to develop the principles which he finds, with such consistency as he may be able to attain."

The present proceedings are equally "a purely statutory action for separation". In the applicant's own Family Law Civil Bill the first paragraph of the indorsement of claim states:

"The applicant and the respondent were lawfully married to each other on the 25^th day of March 1983 in the Registry Office, Molesworth Street, in the City of Dublin."

The normal proof of such a statement would be the production of the marriage certificate. The respondent's defence claiming the invalidity of that marriage has already been put before the Court. The learned Circuit Court judge in the Case Stated and in his judgment has already (correctly) held that the Ohio divorce cannot be recognised as valid and, in effect, that the marriage between the applicant and the respondent is void. It seems to me that for the Court then to proceed to make orders which can only be based on an actual marriage is a step too far.

With considerable reluctance, therefore, and with even more regret, I would hold that the answer to the question set by the learned Circuit Court judge is "No".

In her submissions to this Court senior counsel for the Attorney General has made very full suggestions as to an alternative remedy for the applicant.which, she suggests, would meet the justice of the case. In this case the applicant has indeed suffered a wrong at the hands of the respondent and I am mindful of the principle that where there is a wrong there should be a remedy. It may well be that the course suggested by Ms O'Toole could provide a remedy and, if so, the measure of damages to be granted to the applicant could usefully be, as was suggested by a member of this Court during the hearing, the financial and property reliefs which she could otherwise have obtained in her judicial separation proceedings. However, the matter before this Court is the Case Stated by the learned Circuit Court judge, and it does not seem to me to be open to this Court to reach any opinion or make any finding in regard to the availability of the alternative remedies suggested on behalf of the Attorney General.

As far as the notice party is concerned, she now finds that the Ohio divorce is invalid and that she remains the wife of the respondent, a situation which she emphatically does not desire. It is, of course, now open either to her or to the respondent to institute divorce proceedings in this jurisdiction. Understandably, since the respondent is legally aided and she is not, she asks this Court to "direct" the respondent to instigate divorce proceedings. It is not, unfortunately, open to the Court to make such an order.

I would therefore conclude that the question put by the learned Circuit Court judge to this Court must be answered in the negative.

THE SUPREME COURT

Record No. 100/2003

Denham J.

Murray J.

McGuinness J.

Fennelly J.

McCracken J.

BETWEEN

C. K.

Applicant

and

J. K.

Respondent

and

F McG

Notice Party

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

The Circuit Court has stated a case to this court on a question of great potential importance in certain family law cases. Where a person obtains a divorce by deceiving a foreign court as to its jurisdiction, and then enters into an apparently valid marriage in Ireland by further deceiving his apparent new Irish wife, is the latter precluded by a superior principle of law from arguing, in her subsequent claim for judicial separation, that he be estopped from relying on his own misconduct to impugn the validity of his marriage to her? The Court is invited to reconsider its decision of this court in Gaffney v Gaffney [1975] I.R. 133.

The Applicant, on 21^st September 2001, issued a Family Civil Bill claiming judicial separation and ancillary reliefs pursuant to the Judicial Separation and Family Law Reform Act, 1989. The Civil Bill alleged that the Applicant and the Respondent were lawfully married at the Registry Office in Dublin on 25^th March 1983; that there were two children of the marriage and that the family home was held in the joint names of the parties. It alleged that the marriage had broken down. Apart from a decree of judicial separation, it claims an order relating to custody of children and other ancillary orders including orders in relation to the family home.

The defence denies that the parties were ever lawfully married. In a counterclaim, the Respondent pleads that he had already been lawfully married, in 1968, to another person (the Notice Party). It then states that the Respondent, in 1981, applied to a Court of Ohio, in the United States of America, which, in 1982, granted a decree of divorce in respect of his marriage to the Notice Party. It pleads that, at the time of those divorce proceedings, both the Respondent and the Notice Party were domiciled in Ireland. It is also pleaded that, in 1983, the Respondent applied for recognition of his Ohio divorce from the General Register Office in England, but that he was refused. It describes the apparent marriage to the Applicant as a "purported ceremony of marriage." It says that the "alleged divorce" is not entitled to recognition within this jurisdiction. The counterclaim seeks, inter alia, a declaration of nullity of the "purported ceremony of marriage" to the Applicant.

The proceedings came before His Honour Judge McCartan sitting in the Dublin Circuit Court. A preliminary issue was raised concerning the validity of the Ohio divorce, the validity of the subsequent Irish marriage and the applicability of the principle of estoppel. Having heard the submissions of counsel, the learned judge delivered a written judgment.

The facts, as related in the Case Stated and the findings of the learned Circuit Court judge are fully set out in the judgments of Denham and McGuinness JJ and I do not need to repeat them.

The learned judge went on to state that the law was "so firmly stated in Gaffney v Gaffney" that he did not "feel entitled to rule outside the terms of that decision." He considered that the concept of estoppel was "a judge-made and developed principle," well suited to offer a solution to the case, but it was preferable to consult the Supreme Court to discover, having regard to the passage of time, the scope of the doctrine of estoppel could be expanded beyond the parameters laid down in 1975. His own view on the matter was stated as follows:

"… I believe that justice between the parties can only be achieved by prohibiting or estopping the respondent from attacking the validity of the divorce and by definition the validity of his marriage to the applicant. I accept that the concept of estoppel as a remedy, well suited to offer a solution in this case, is a judge made and developed principle."

The following is the question posed for the opinion of the court:

"Whether I am entitled to hold in these proceedings as a matter of law, having regard to the findings of facts made by me, that the respondent is estopped from denying that he is married to the applicant."

This Court has received written submissions from counsel on behalf of the Applicant, the Respondent and the Attorney General. The Notice Party was informed of the hearing and of her right to make submissions. She declined to do so, explaining in a letter more fully dealt with by McGuinness J, that she was not legally aided.

The Applicant' submissions

Mr Gerard Durcan, Senior Counsel, for the Applicant drew attention to the view of the learned Circuit Court judge that justice could only be achieved by estopping the Respondent from attacking the validity of the marriage and says, if this cannot be done, it follows that injustice will be visited in the Applicant. "The representation relied upon as an estoppel," according to Spencer Bower and Turner (Estoppel, Third Edition page 16 and 17), "is, in itself no direct or affirmative evidence of any title or right whatsoever; it can only be used to prevent the opposite party from denying that title or right whatsoever; it can only be used to prevent the opposite party from denying that title or right." The case for the Applicant is not that the estoppel confers on her the status of spouse but rather that the Respondent is precluded in these proceedings from saying that she does not enjoy that status. It is a personal estoppel only. The Applicant acted to her detriment on foot of the Respondent's misrepresentation, by entering into a ceremony of marriage and living with the Respondent as his wife, including bringing up the two children of the apparent marriage.

It is claimed that Gaffney v Gaffney was decided, by this court, on the basis, not of estoppel by representation, which it did not address, but of estoppel by record: since the English Court, in that case, had no jurisdiction over the wife, who was not domiciled there, it did not have jurisdiction to grant the order of divorce. Walsh J also stated that estoppel cannot change marital status. However, the Applicant acknowledged that Kenny J, in the High Court, held that a spouse was not precluded from denying the validity of a divorce obtained for the purpose of obtaining pecuniary advantage, and that would be inequitable in the circumstances. It was submitted that this was a mistaken view. It was not correct to say that a spouse would be married for some purposes but not for others. Status would not be affected. The divorce would not be recognised, but a particular remedy, which would normally flow from non-recognition, would be denied.

The Applicant also emphasises the great social and legal developments that have taken place since Gaffney v Gaffney was decided. At that time, the only matrimonial remedy was divorce a mensa et thoro. Many legislative changes have since occurred, most notably the introduction of civil divorce. Moreover, rules regarding domicile have changed: the rule of the dependant domicile of the wife has been judicially abolished; the Domicile and Recognition of Foreign Divorces Act, 1986 provided, prospectively, for recognition of foreign divorces based on the domicile of one of the parties. Social change includes the greater incidence of marriage breakdown and accompanying resort to foreign divorce jurisdictions.

The Applicant contends, on the authority of the decision of this Court in G. McD v D. W. (No. 2) [2000 4 I.R. 1], that, for the purposes of section 29 of the Act of 1986, there has been a variation of the common-law rule that decisions affecting marital status may not always be in rem. Since such declarations bind the State only if the Attorney General is a party to the proceedings, it was submitted that such declarations may be binding on some persons and not others. Mr Durcan freely acknowledged the implications of a decree of judicial separation being a judgment in rem. If it is, it binds the whole world and personal estoppel cannot arise. He argued for a distinction between the English and Irish procedure. In England, judicial separation proceedings are commenced by petition and are heard in open court. Here, matrimonial proceedings, except for nullity, are commenced by Special Summons or, in the Circuit Court by Civil Bill and are heard in camera. He cited the Judgment of Butler Sloss, L.J. in Clibbery v Allan and another [2002 [Family] 261 to the effect that the "principle of open justice applies to all courts and in principle the family courts are not excluded from it…"

The Applicant submitted that the approach in the United States has, for many years, been different from ours. The Restatement of Law by the American Law Institute recognises that a person may be precluded from attacking the validity of a foreign divorce if, under the circumstances it would be inequitable for him to do so. Though recognising the existence of varying application of the rule from state to state, the Applicant has referred to a number of relevant authorities. In one of these, Mayer v Mayer 66 N.C. App., the Court of Appeal of North Carolina held: "There is a difference…between declaring a marriage valid and preventing one from asserting its validity."

In Downton v Royal Trust Company et al. [34 D.L.R. (3d) 403, Laskin J, in the Canadian Supreme Court, saw no rooted objection to "the application of a preclusion doctrine against a spouse who has ignored the jurisdictional requirements for a valid dissolution and who would nonetheless insist to his or her own pecuniary advantage that the law be applied strictly in his or her own favour in disregard of an attempted dissolution which is invalid."

The Respondent's Submissions

Mr Gerard Hogan, Senior Counsel, referred to the recital by the decree of the Ohio court that the Respondent had been a bona fide resident of the State of Ohio for at least six months. He points out that, not only were the residency details so cited incorrect, but that, even on the assumption that they were correct, Irish law would not have granted recognition to such a divorce, where neither party was domiciled in that State. It is correctly submitted that it is not disputed that the Ohio divorce is not entitled to be recognised in Irish law and that, consequently, the marriage ceremony of 1983 was also invalid.

The Respondent submits that Gaffney v Gaffney leaves no room for the application of a doctrine of estoppel in circumstances such as the present. The Court there expressly envisaged this type of case and laid down a very broad principle. This Court has expressly followed and applied that decision in the recent case of R.B. v A.S. [2002] I.R. 428. The Respondents quote in extenso the judgments of Kenny J in the high Court and of Walsh JJ in the Supreme Court in that case. I propose to consider these judgments in some detail. It is sufficient to state that they proceed on the basis that resort to estoppel would conflict with the unshakable and fundamental principle that the validity of marriage is a matter of status, that pronouncements respecting the validity of marriage are decisions in rem and that they cannot be displaced by the doctrine of estoppel no matter what the circumstances.

The Respondent submits, accordingly, that, unless Gaffney v Gaffney can be overruled, he cannot be prevented by estoppel from setting up the invalidity of the Ohio divorce. The Supreme Court will not, however, decline to follow its own decisions merely because a contrary view is also possible (Mogul of Ireland v Tipperary (NR) County Council [1976] I.R. 260). At the least, the later court must be clearly of the opinion that the earlier opinion was wrong.

The Respondent submits that departure from the principle laid down in Gaffney v Gaffney could be justified only if it produced manifest injustices that were not foreseeable at the time that decision was pronounced. The social and legal developments since 1975 do not justify any departure from Gaffney v Gaffney. No key arguments were overlooked in Gaffney v Gaffney. The Respondent relies both on the fundamental principle that marriage is a matter of status, which cannot be decided differently depending on the circumstances and on the anomalies that, it is claimed, would result from relaxation of the Gaffney v Gaffney rule.

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

The Attorney's General Submissions

Ms Mary O'Toole, Senior Counsel, on behalf of the Attorney General supports the Respondent's submissions. The Respondent committed a fraud on the Ohio court, but even without that the divorce could not be recognised in Irish law, which applies a domicile rather than a residency test.

The Attorney General suggests that, according to the judgment of Laskin J in the Canadian decision in Downton, whether or not estoppel will apply will depend on the circumstances. There is uncertainty and variation in the case law. Dicey and Morris (Conflicts of Law, 13^th ed., vol 2 at page 762 paragraphs 18-131 and 132.) stated that:

"The difficulty is as American and Canadian Courts have discovered, that if fixed rules of law are departed from in the interests of justice in the individual cases, all certainty in questions of marital status is lost."

The Attorney General also relied on certain well-known English authorities. In Bonaparte v Bonaparte (892) p. 402, three parties, husband, wife and co-respondent, all English domiciliaries, colluded to deceive a Scottish into granting a divorce decree on the basis of false evidence of Scottish domicile. When the co-respondent sought a declaration of invalidity of his subsequent marriage to the Respondent, it was held that there were good reasons for regarding marriage in a different light from other contracts. The co-respondent was not precluded form challenging the validity of the Scottish divorce and subsequent marriage. The Attorney General also referred to the English Court of Appeal decision in Travers v Holley (1953) P. 246. A husband was held, by the majority of the Court to have established a domicile of choice in New South Wales, where his wife obtained a divorce from him. On this basis, the issue of estoppel did not arise. Jenkins L. J., however, dissented. He thought that the New South Wales domicile had not been established. In addition the husband was not precluded from challenging the validity of a New South Wales divorce by reason of allowing the decree to be granted by default and remarrying in reliance on it.

Counsel for the Attorney General submits that, in the light of Article 41 of the Constitution, marital status is a constitutional status. The dictum of Walsh J in Gaffney v Gaffney to the effect that marital status "could not, by any rule of evidence be left in doubt, nor could a court countenance a doctrine of estoppel…" is a correct and definitive statement of the law. Any departure would lead to a state of great uncertainty. The decision of the Supreme Court in F v F [1995] I.R. 354 establishes that the decree of judicial separation, like its predecessor, a decree of divorce a mensa et thoro, is based on the parties being lawfully married to each other; it does not alter the marital status of the parties, but is based on that status. A decree of judicial separation is, in essence, a judgment in rem. A decree has statutory and fiscal consequences in respect, for example, of the income-tax and capital-gains tax liabilities of the parties. Some of these tax provisions would enure to the benefit of the Respondent, who was responsible for bringing about the entire situation. The State would be bound, though not a party. The judicial separation decree would simply have to be produced to the relevant state authority.

The Attorney General draws attention to section 29 of the Family Law Act, 1995. That section permits a spouse or "any other person who, in the opinion of the court, has a sufficient interest in the matter …" to apply for "a declaration that [a] marriage" either "was at its inception a valid marriage" or that it "subsisted on a date specified..." The section also provides for declarations either in respect of the recognition or non-recognition of the validity of a divorce granted in any other country. The Attorney General raises two questions: firstly, whether the Respondent would be entitled to a declaration that the Ohio divorce is not entitled to recognition in the State; secondly, whether the Notice Party would be entitled to a declaration of the validity of her marriage to the Respondent. It is suggested that each of these questions should be answered in the affirmative. Consequently, on the Applicant's submission, the court could make an order for judicial separation and for the invalidity of the Respondent's Ohio divorce in the same action. In the result, there would be, to all intents and purposes two constitutional families. Moreover, there would be no way of distinguishing the position of the Applicant from that of any other spouse holding a decree of judicial separation.

Discussion and Analysis

In the clearly stated opinion of the learned circuit court judge, justice can only be done between the parties by estopping the Respondent from attacking his Ohio divorce and the validity of his Irish marriage to the Applicant. The Attorney General submits that he is mistaken in ignoring alternatives civil remedies in contract and tort. In my view, however, it would not be right for this court to pronounce on those possible alternatives in this case. The Case Stated raises a specific question. The Applicant may well pursue other remedies, but they would have to take their normal course. Such matters would have to be litigated at first instance before they could be considered on appeal.

It is not contested on behalf of the Respondent or the Attorney General, nor could it be, that, in the event of her being denied the remedy of judicial separation, the Applicant will suffer a serious injustice. She entered, in good faith, into an apparently valid marriage with the Respondent. She had, at the time of the issue of the Civil Bill, lived with him, as his wife, for some seventeen years, founded a family and shared a family home. She was misled, by the most gross deception, into believing that she was validly married.

It is common case, however, that the Ohio divorce was not capable of recognition in Irish law. Neither party was domiciled in that jurisdiction at the time of the decree. Indeed, though it is not a matter for this court, it seems that the decree was not valid according to the law of the State of Ohio, since the Respondent falsely informed that court that he had been resident there for a period sufficient to enable that court to exercise jurisdiction.

Irish law accords recognition to a foreign divorce decree only in circumstances where at least one of the parties is domiciled in the jurisdiction of the court granting the decree. The matter is now very substantially regulated by statute. Section 5 of the Domicile and Recognition of Foreign Divorces Act, 1986 enacts a "rule that a divorce shall be recognised if granted in the country where either spouse is domiciled." The section, however, applies only from the commencement of that Act (see section 5(5)). From 1^st March 2001, by virtue of Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (O.J. L 160 30^th June 2000), very substantial change has been made with regard to the recognition of divorce within the European Union. None of these changes has, either temporally or substantively any effect on the recognition of the Ohio divorce, which fell outside the common-law rule, based on domicile. No issue at all arises in the present case concerning the existing rules regarding recognition of foreign divorces.

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

It is for that reason that the Applicant has raised the issue of estoppel and the learned Circuit Court judge has posed the question in the Case Stated. The Applicant accepts that the decision of this court in Gaffney v Gaffney would preclude an affirmative answer being given to that question.

The facts of Gaffney v Gaffney were, in one sense, the converse of those in the present case. The petitioner for divorce was the oppressed party. Kenny J summarised the facts directly related to the obtaining of the divorce as follows:

"The husband said to the plaintiff on a number of occasions that he wanted to get a divorce from her. She did not want this. Nevertheless, the husband in 1957 instructed a firm of solicitors in Manchester to prepare a petition by the plaintiff seeking a divorce a vinculo from him. The plaintiff never gave instructions to this firm that they were to act for her or that they were to apply for a divorce in her name. The solicitors prepared a petition in which the plaintiff was named as petitioner and in which it was stated that the husband resided at No. 22 Edward Street, Blackburn, England, and that the plaintiff and he were domiciled in England. The husband knew that both these statements were false. The husband never resided at No. 22 Edward Street, Blackburn; at all times the plaintiff and he were domiciled in the Republic of Ireland. The petition went on to state that the husband had deserted the plaintiff for three years and a divorce a vinculo was sought on this ground. The engrossment of the petition and a verifying affidavit by the plaintiff were sent to the husband by the solicitors, and the husband brought them to the plaintiff at Fairyhill and threatened her with physical violence if she did not swear the affidavit. The plaintiff then went to a commissioner for oaths in Dublin and swore it."

Although the plaintiff acted as petitioner, Kenny J had no doubt that she did so under the actual threat of physical violence from her husband. On these facts, it would, on any view, have been unjust to prevent her from denying the validity of the divorce. Kenny J found that the divorce had been obtained as a result of fraud and duress. He considered that finding sufficient to dispose of the defendant's reliance on the English divorce. Insofar as he proceeded to consider the issue of estoppel, it seems that that part of the judgment is probably obiter. Kenny J outlined some anomalies that he believed could or would flow from application of the principle of estoppel. He though that , if the law was "to avoid these ridiculous consequences, ……on principle the doctrine of estoppel does not apply to the question of the existence of a valid marriage or the status of being married though it may apply in relation to property rights between husband and wife." He went on to refer to the fact that Canadian courts appeared to have recognised the possible application of the doctrine of estoppel to a spouse who had invalidly invoked the jurisdiction of a foreign divorce court and to cite a number of criticisms of this view.

The defendant appealed to the Supreme Court. It has been said that the appeal was based on a submission that the decision of the English divorce court was a matter of record and that the principle relied upon was estoppel by record. However, the report of the case also shows that the appellant argued that the plaintiff was not entitled to "approbate and reprobate" in respect of the divorce and that she had obtained a benefit under it and more particularly under a subsequent agreement with her husband. I am satisfied that this raised, in substance, the issue of estoppel by representation.

The Supreme Court was unanimous in dismissing the appeal. Walsh J, with whom O'Higgins and Parke J agreed, restated, at page 150, the basic rule that "the Courts here do not recognise decrees of dissolution of marriage pronounced by foreign courts unless the parties were domiciled within the jurisdiction of the foreign court in question." This has, of course, been modified both judicially and by statute to the extent of opening recognition to cases where one spouse is so domiciled. (W v W [1993] 2 I.R. 476). Walsh J recited the appellant's estoppel argument as follows: "By reason of the fact that she was the petitioner and that she swore in the petition that her husband's domicile was in England, it is claimed by the defendant that the plaintiff is now estopped from setting up the contrary."

While Kenny J had answered the contention that a spouse should be estopped from denying the validity of a demonstrably invalid foreign divorce, which he had contrived, by envisaging various anomalies and absurdities which it would produce, Walsh J approached the issue as raising a matter of fundamental principle. He stated, at page 152:

"The paramount issue in the present case is the status of the plaintiff and her husband at the date of his death. The plaintiff was either his wife or she was not. Apart from other legal incidents in this country, certain constitutional rights may accrue to a woman by virtue of being a wife which would not be available to her if she were not. The matter cannot, therefore, by any rules of evidence be left in a position of doubt nor could the Courts countenance a doctrine of estoppel, if such existed, which had the effect that a person would be estopped from saying that he or she is the husband or wife, as the case may be, of another party when in law the person making the claim has that status. In law it would have been quite open to the husband to have denied at any time after his marriage to the defendant that he was in law her husband. If during the currency of that marriage the plaintiff had claimed that she was his wife, she might have been met with the answer which is being offered on behalf of the defendant in this case - that the plaintiff was estopped from doing so because she had submitted to a jurisdiction which purported to change that status. Consent cannot confer jurisdiction to dissolve a marriage where that jurisdiction does not already exist. The evidence which the plaintiff sought to offer in the present case was directed towards showing that the court in question did not have jurisdiction. In my view, the learned trial judge was quite correct in admitting that evidence."

The judgments of Henchy and Griffin JJ concentrate on the issue of estoppel by record. However, each of them rejected the argument that the plaintiff should not be allowed to give evidence to show that the English court lacked jurisdiction to grant the decree of divorce. Henchy J stated, at page 154:

"I fail to see why, although the decree seems good on its face, evidence should not be received to show that its facade conceals a lack of jurisdiction no less detrimental to its validity than if it had been written."

Mr William Duncan, in an article to which the court has been referred (The Irish Jurist, 1974, page 59), argued that the appeal in Gaffney v Gaffney was limited to the narrow issue of the claimed inadmissibility, by reason of estoppel by record, of evidence to challenge the facts recited by the English divorce decree. He expressed the view that the remarks of Walsh J, quoted above, should possibly be regarded as addressed to that point. The learned author accepted the general agreement among legal authors that "marital status per se cannot be affected by a doctrine of estoppel." However, he suggested that Gaffney v Gaffney did not consider a more controversial question, namely whether "a spouse who has sought and obtained a foreign divorce can later claim that it should not be recognised in order to gain some pecuniary or other advantage in respect of his or her spouse or the estate of the spouse." The author went on to argue for a place for the principle of estoppel, where a spouse, having obtained a foreign divorce, denies its validity in order to obtain an unfair personal advantage. The principle might provide "a sound reason for denying the spouse a specific remedy." (emphasis added). It is not clear whether Mr Duncan would go so far as to permit estoppel of that hypothetical spouse from denying the validity of his divorce in a case such as the present involving the validity of a subsequent marriage.

The Applicant has drawn attention to the fact that in at least certain States of the United States of America, where marriage is a matter for the states, and in Canada, where it is a federal matter, possible reliance on estoppel is not excluded.

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

"The validity of a divorce decree cannot be questioned ... either by a spouse who has obtained such decree or divorce from a court which had no jurisdiction or by a spouse who takes advantage of such decree by remarrying."

In 1971, this statement was reformulated:

"A person may be precluded from attacking the validity of a foreign divorce decree if, under the circumstances, it would be inequitable for him to do so."

The accompanying comment on this text contains the following:

"The rule's scope of application varies from state to state and, even within a single state, is often clouded with uncertainty. In general, it can be said that a person who obtains a divorce and then remarries will not be permitted to attack the validity of the divorce to free himself from his obligations to his second spouse or in order to claim an inheritance from the estate of the first spouse…" (cited by Laskin J in Downton v Royal Trust Company, discussed below).

These extracts and a sample of cases decided by the courts of a number of states demonstrate that, at the very least, there is no principled objection to the introduction of the doctrine of estoppel in order to preclude a spouse who has initiated or even from participating in divorce proceedings before a foreign court lacking jurisdiction in accordance with normal domicile rules. Indeed, my reading of the cases cited suggests that many American courts feel no need to address issues of status or public policy, treating the matter of marriage as primarily a matter for the spouses. Mr Hogan, on behalf of the Respondent described as "fallacious" the following passage cited from the judgment of the Court of Appeals of North Carolina in Mayer v Mayer 66 N.C. The Appellant. 522:

"We are not unmindful of [the] argument that to estop [the husband] from questioning the divorce's validity would have, as he puts it, the effect of validating a marriage which [the general law] declares a nullity. There is a difference, however, between declaring a marriage valid and preventing one from asserting its invalidity. The theory behind the equitable estoppel doctrine is not to make legally valid a void divorce or to make an invalid marriage valid, but rather to prevent one from disrupting family relations by allowing one to avoid obligations as a spouse. Stated differently, equitable estoppel is dependant on events which led to the divorce or which may have occurred after the divorce. It is a personal disability of the party attacking the divorce judgment; it is not a function of the divorce itself."

Despite the expressed disavowal of the intention to make an invalid marriage valid, that is precisely what the court wished to do by its reference to "obligations as a spouse," which appears to beg the question whether there is a (second) marriage. Indeed the comment on the Restatement, which I have quoted, clearly implies that support for the validity of later marriages is, indeed one of the policy considerations underlying the rule.

The Canadian Supreme Court would also, it appears, permit estoppel to be raised against a plea of invalidity of a foreign divorce. The Applicant has cited the judgment of Laskin J in Downton v Royal Trust Company et al. [34 D.L.R. (3d) 403. The case bears one resemblance to Gaffney v Gaffney, namely that it concerned a contest between two contesting spouses regarding rights in the estate of the deceased husband. The learned judge identified from the earlier Canadian cases "the application of a preclusion doctrine against a spouse, who having obtained a decree of divorce or nullity from a foreign incompetent to give it, seeks thereafter to assert that incompetence in order to gain a pecuniary advantage against his or her spouse or the estate of the spouse." Mr Duncan cited this passage in support of the thesis advanced in his Irish Jurist article.

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

"Any ethical factors underlying the preclusion doctrine are submerged in overriding considerations when an invalid foreign decree is pressed in a strictly matrimonial cause in which divorce or nullity is sought. Marital status per se cannot be altered or perpetuated by a preclusion doctrine, ad hence, …… a spouse should not be denied the right to seek a divorce before a competent Court merely because that spouse earlier invoked the jurisdiction of an incompetent foreign Court."

There seems thus, based on this brief review, to be a significant difference between the US and Canadian courts. The Downton judgment, at least, seems to attribute a value to the notion of marital status, as such, which seems absent from US case law.

The Court, in this case, must answer the question posed in the Case Stated fully conscious of the glaring injustice perpetrated upon the Applicant by the fraudulent behaviour of the Respondent. No court will be happy to see him benefiting from his deceit. It is probably the deceit of the Applicant, rather than of the Ohio court, that is the true gist of the injustice. If she had been fully aware of the fraud that was being perpetrated on the Ohio court, she would have been in very much weaker position to invoke the doctrine of estoppel. A possible answer to the argument based on deception might to pose a different hypothetical situation. If the plaintiff had simply been married before and not divorced, validly or not, and had mendaciously concealed this fact from to the Applicant, what would have been the position? Clearly, the second marriage would have been bigamous and invalid. In that situation, would the Respondent have been estopped from referring to the earlier marriage? It is very difficult to see that he would. A court, confronted with such facts at the outset of a judicial separation action certainly could not hold that the parties were married. Equally, it could not give itself jurisdiction by holding that the Respondent was estopped by his deceitful behaviour from denying the validity of the marriage. It seems to me that the issue has to be addressed as one of strict law.

I am prepared to accept, as a hypothesis, the argument propounded by Mr Duncan in his Irish Jurist article. A person who has behaved as the Respondent in this case has done should, as a matter of general principle, be precluded by the doctrine of estoppel from proving the invalidity of the divorce obtained by him from a foreign court on concocted and fraudulent evidence, where his object is to obtain an unfair advantage over another or where he seeks a specific remedy. The real question is to identify the sort of advantage or remedy which he should be precluded from getting. If, for example, he were to seek recovery of sums paid on foot of the divorce decree, or otherwise to readjust property ownership with his lawful wife, the plea might have merit. Such a spouse might, depending on the circumstances, find it difficult to maintain a claim to share in the estate of his deceased lawful wife. It will be recalled that Walsh J was of the opinion that, if it had not been for the duress, the plaintiff in Gaffney v Gaffney would have been bound to apply to the English court to set aside the divorce decree. None of those situations, however, so directly affect marital status as does this one.

There was much discussion at the hearing about the distinction between actions in rem and in personam. It was generally agreed that judicial decisions concerning marital status have traditionally been regarded as judgments in rem. They affect the entire world. Decrees in matrimonial suits have long been considered to be judgments in rem. (se Bater v Bater [1906] P 209]. Kenny J, in Gaffney v Gaffney , cited Professor Falconbridge's statement that if "the divorce is a judgment in rem purporting to affect the status of the parties - therefore consent cannot confer jurisdiction on the court - the parties are still husband and wife." While he criticised the distinction as meaningless, he seems to have reached a conclusion substantially similar to that involved in the cited English cases. He said that "on principle the doctrine of estoppel does not apply to the question of the existence of a valid marriage or the status of being married …" Walsh J, as quoted above, expressed himself in very similar terms. It is perhaps unattractive to describe a marriage, even indirectly, as a thing. The essential point is that, whatever language is used, marriage involves status and has public-interest implications.

I do not accept that any change has been effected either by the Family Law Act, 1995 or the decision of this court in G. McD v D. W. (No. 2). Denham J, at page 7 of her judgment in that case, referred to the "in rem nature" of judgments as to marital status at common law, recalling the dictum of Lord Simon of Glaisdale in Ampthill Peerage [1977] A. C. 547 at 576 that "if the judgment is as to the status of a person, it is called a judgment in rem and everyone must accept it." Denham J did not, however, consider it necessary to decide upon the meaning of the expression: "if the Attorney General is a party to the proceedings, the declaration shall be binding on the state …" Murphy J referred to this provision as "a difficult concept." Nonetheless, he observed that the "very nature of legal status is the public recognition which it enjoys (or endures) whether that status arises from contractual arrangement or an accident of birth."

Whether or not a judgment as to marital status is a judgment in rem is not, in my view, affected at all by the procedural and other distinctions between English and Irish matrimonial proceedings. Mr Durcan's strongest point seemed to be that matrimonial proceedings heard in camera cannot bind the whole world, since the public does not know about them. It is clear, however, that the rationale for the dictum of Butler Sloss L. J., quoted above, and of others has nothing to do with that question but is founded entirely on the principle that justice should be administered in public. Butler Sloss made no distinction between matrimonial and other proceedings for this purpose. It is true that the House of Lords, in Scott v Scott [1913] AC 417, Lord Haldane referring, at page 436, to matrimonial proceedings, said that, because they "affect status, the public has a general interest which the parties cannot exclude…" Yet, the Law Lords were proceeding from the general principle of open justice rather than making a special case for matrimonial causes. I am satisfied that the purpose of the in camera rule applied to family law proceedings in this jurisdiction is to protect private and family life from potentially distressing public and media intrusion and that it does not diminish the character of the decisions made by those courts. They remain decisions as to status.

The question which directly arises is whether a judicial-separation action is an action in rem. Mr Durcan, accepted, at least initially, that it is. It does not affect status; it does not change status, because it merely affects to parties mutual obligations to cohabit. On the other hand, the entire jurisdiction is predicated on the existence of a marriage. Mr Durcan accepted that, in England, it has, for that reason, been held to be an action in rem. The fact of the grant of a decree of judicial separation has a number of legal consequences either flowing from the mere fact of the decree itself or from ancillary orders. The Respondent would be entitled to tax relief on maintenance payments. Assets transferred pursuant to property orders are exempt from capital gains taxation. None of these matters are, of course, undesirable in themselves. They merely demonstrate that the decree has certain objective legal effects amounting to recognition in law of the marital status, though separated, of the parties.

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

"The court may, on application to it in that behalf by either of the spouses concerned or by any other person who, in the opinion of the court, has a sufficient interest in the matter, by order make one or more of the following declarations in relation to a marriage, that is to say:

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

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

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

(d) a declaration that the validity of a divorce, annulment or legal separation obtained under the civil law of any other country or jurisdiction in respect of the marriage is entitled to recognition in the State,

(e) a declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in the State."

Under these provisions, a court is empowered to make a number of different types of declaration regarding marital status. For example, it would entitle the Notice Party to apply for a declaration of the continuing subsistence and validity of her marriage to the Respondent, who could equally apply for a declaration that the Ohio divorce is invalid. If either such declaration were to be made, it would conflict with any decree of judicial separation granted in the present proceedings. It would mean that there existed, in Irish law, conflicting declarations as to the marital status of the Respondent. The public interest in such declarations is recognised by provisions permitting the court either on its own motion or on the application of any party to order that notice be given to the Attorney General, who may also himself apply to be joined as a party. Sub-section (8) provides:

"A declaration under this section shall be binding on the parties to the proceedings concerned and on any person claiming through such a party and, if the Attorney General is a party to the proceedings, the declaration shall also be binding on the State."

In my opinion, it does not matter that the binding effect on the State depends on whether the Attorney General is a party. The section has general implications for the marital status of the parties.

I am convinced, therefore, that judicial separation proceedings relate to the marital status of the parties to the action, even if they do not change that status. Such proceedings depend on the parties being lawfully married to each other. The problem is not merely that anomalies would flow from estopping the Respondent from impugning the validity of the Ohio divorce. The law is capable of accommodating anomalies. The objection is more fundamental. It is that the effects of a decree of judicial separation would not be limited to the private and personal rights and interests of the parties. The public interest is involved. The court itself is very directly involved. The jurisdiction of the court presumes that the parties are married. Once they are not, the court can not entertain the application. It would be closing its eyes to blatant evidence that it lacked jurisdiction.

I conclude, not without some regret, that the question posed in the Case Stated must be answered in the negative. This is not to deny, in any sense, the concerns of the learned Circuit Court judge about the injustice to the Applicant. The injustice flows from the actions of the Respondent in fraudulently inducing her into an invalid marriage. It cannot be remedied by making valid what was, from the beginning, utterly void.