Mulligan v

K v K

Family law – Judicial separation - Marital status – Consultative case stated – Question of law – Estoppel and marital status – Stare decisis – Conflicts of law - Whether respondent could be estopped from denying that he was married to the applicant - Whether doctrine of estoppel could be used to change a person’s status

Facts The applicant and the respondent were married at the Registry Office in Dublin in 1983. The relationship broke down and in 2001 the applicant issued a civil bill in the Circuit Court seeking judicial separation. The respondent sought a declaration in his counterclaim that he had been previously married and that a divorce obtained by him in the USA was not entitled to recognition in the State and therefore that the purported ceremony of marriage entered into between himself and the applicant was null and void. The status of the respondent determined whether the Court had jurisdiction to entertain the application seeking a decree of judicial separation. This was a consultative case stated from the Circuit Court referring a question of law to the Supreme Court. The opinion of the Supreme Court was sought on whether the Circuit Court was entitled to hold as a matter of law, having regard to the findings of fact made by the Circuit Court, that the respondent was estopped from denying that he was married to the applicant.

Held by the Supreme Court in answering the question posed in the negative that the doctrine of estoppel could not be used to change a person’s status when that had not occurred. The applicant could not evade the reality of the situation and the respondent could not be estopped from bringing forth evidence as to the status of his divorce in Ohio.

Reporter: R.W.

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

Judgment delivered on the 31st 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 22nd 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 7th September, 1968 to F.McG. There was one child of the marriage who was born on the 29th 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 25th 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 24th day of April, 1987 and the 13th 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 29th 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 I.R. 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 I.R. 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 I.R. 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:-

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 I.R. 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, 10th 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:

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

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 31st 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 21st 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 25th 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, 13th 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 1st 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 30th 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.