Neutral Citation No: [2005] IEHC 335
[2002 No. 123 M]
BETWEEN/
APPLICANT
RESPONDENT
NOTICE PARTIES
Judgment of Mr. Justice O'Higgins delivered the 3 rd day of June, 2005.
The Facts
The applicant and the respondent are French citizens. On 22 nd June, 1978, the applicant and the respondent entered into a contract of marriage in the jurisdiction of the French courts. This contract established marriage settlement for the separate ownership of property as between them. On 26 th June, 1978, M.N. and Y.R. were married in France. On the date of the marriage both parties were domiciled and habitually resident in France.
M.N. and Y.R. came to Ireland in 1998 and established their residence in County Cavan. In 2002 the applicant returned to France on a permanent basis and has resided there continuously since then.
On 22 nd November, 2002 M.N. filed a petition for divorce on the grounds of fault pursuant to Article 242 of the French Code Civil in the Tribunal de Grand Instance in Strasbourg, France. The petition came before a family court judge on 26 th November, 2002. On 23 rd December, 2002, the French court fixed a hearing date in its proceedings for 4 th February, 2003. On 23 rd December, 2002, Y.R. the applicant instituted family proceedings by way of special summons in the High Court in Ireland.
When the hearing came before the French court on 4 th February, 2003, both parties were legally represented. The applicant in these proceedings, Y.R., contested the jurisdiction of the French court to hear the case. The French court in its ruling dated 25 th March, 2003, held it had jurisdiction to hear the proceedings under the preventions of Brussels II. That decision remains unappealed. On 26 th June, 2003, the French court made a ruling of non-reconciliation and directed the second stage in the divorce proceedings to proceed. The French court has ordered an expert analysis of the financial affairs of the parties and has appointed an independent expert to discharge that function. In the French proceedings Y.R. has counterclaimed for divorce on the grounds of fault and sought a variety of financial orders from the French courts, including a payment of €100,000, while also reserving her position in relation to the expert audit being carried out by the French court in relation to financial matters.
By notice of motion dated 13 th October, 2003, the respondent brought an application to this Court to declare that it has no jurisdiction in the matter in circumstances where the French Court has seisin of the case. Under the provisions of Article 11 (2) of the Regulation when the jurisdiction of the court first seised of the proceeding is established, " the court second seised shall decline jurisdiction in favour of that court ". Article 17 provides that " The jurisdiction of the Member State of origin may not be reviewed . . . "
An order under the provisions of Order 60 of the Rules of the Superior Courts dated 23 rd January, 2004 was served on behalf of the applicant on the Attorney General. In the Order 60 notice the applicant contends that the EC Regulation 1347/2000 and the 2001 Regulations are invalid and have no force in Ireland, having regard –
The applicant's submissions
The respondent and the notice parties take issue with the contentions of the applicant. By way of preliminary objection they contend that the applicant has no locus standi to argue the constitutional issues in that she has not established a sufficient basis in fact to enable her to do so. They also argue that the applicant should be precluded from arguing the constitutional issues by virtue of nature of her participation in the French proceedings. I will deal with these preliminary points first.
One of the main contentions of the applicant was because the main 'seat' of the marriage was in Ireland it is not permissible for the respondent to pursue divorce proceedings in France. However in the affidavits before the Court the applicant has clearly established that the parties lived in Ireland most of the time for the greater period of the marriage and that the "seat of the marriage was in Ireland". In those circumstances she has in my view established a sufficient factual basis on which to argue her constitutional case. A second preliminary issue arises. The respondent and the notice party claim that the applicant is precluded from obtaining the relief sought by her in circumstances where the applicant has not only taken part in the French proceedings but she herself has counterclaimed for divorce and financial relief in this proceedings. Moreover in an affidavit dated the 18 th November, 2003, authorised by her and sworn on her behalf the first sentence in para. states as follows:-
In my view it quite inconsistent not only to accede to a divorce petition in France but also to counterclaim for divorce in that country and at the same time to maintain in these proceedings that the granting of that petition is impermissible because the seat of the parties' marriage was in Ireland. She is in effect acceding to and counterclaiming for reliefs in the French Court while at the same time alleging that those reliefs are unconstitutional. In those circumstances, I consider that, the applicant is precluded from making the constitutional case that she wishes. Therefore I find it is unnecessary to decide on the merits of the case. However, in deference to the arguments made and for the purposes of expedition the event of a different conclusion being arrived at elsewhere I consider it appropriate to make some observations on the contentions of the applicant as set out above. -
The provisions for divorce in the Irish Constitution are set out in Article 41.3.2 which was inserted following a referendum. The European Council Regulation No: 1347/2000 (Brussels IIA) on the jurisdiction and recognition and enforcement of judgments in Matrimonial Matters and of Parental Responsibilities were not adopted by referendum but by the approval of a proposal put before both houses of the Oireachtas. It is argued that the regulations effectively amend Article 41.3.2 of the Constitution and counsel submits that "a mere resolution of the Dáil and Senate cannot be construed as overruling the will of the people" as expressed in the referendum. The applicant submits that the Brussels II Regulation does not apply in Ireland. I cannot agree with the applicants contention for the following reasons:
The court accordingly decided that it was seised of the case.
(iv) Article 29.4.10 of the Constitution provides that:
(2) The applicant contends that it is impermissible for the respondent to
commence or at least pursue proceedings for divorce in France. Despite the fact that:-
The argument is as follows:-
The State puts a very high constitutional value on marriage. The provisions of the Article 41.3.2 provides to limit the circumstances in which marriages may be dissolved in Ireland. The concept of proper provision is also part of the regime for judicial separation. The consequence of adopting Brussels IIA Regulation was that the grounds for recognition of foreign divorce had an effect of diluting or negativing the proper provisions section and that that is impermissible. It is argued that because the property regime under French divorce laws are different and impinge on the proper provision under the Judicial Separation Act, it was somehow impermissible to have recourse to French law.
It is true that, as contended for by the respondents, Irish law attaches a high value to the statue of marriage in Ireland (see Murphy v AG [1982] I.R. 241, Hamilton v. Hamilton [1982] I.R. 466, W v. Somers [1983] I.R. 122, Bank of Ireland v. Smyth [1995] 2 IR 459 . It is also true that the power to grant a dissolution of marriage emanates directly from the Constitution. The statutory provisions emanate directly from the terms of Article 41.3.2 of the Constitution. As Barron J. observed in R.C. v. C.C. [1997] 1 I.R. 337 (where he granted a divorce under the Constitutional provisions of Article 41.3.2 before the coming into effect of the Family Law (Divorce) Act, 1996). However these facts do no impinge on the applicability of the Brussels II Regulation in this case. The Brussels II regulation is part of Irish law. It specifically allows for a choice of jurisdiction in some circumstances, including those which are applicable in the case of the respondent. Under the Regulations he was entitled to bring proceedings in the jurisdiction of the French Courts. By so doing there were indeed consequences for the applicant which may well be different than those following a judicial separation under Irish Law. However in my view there is nothing in law to support the contention that because the seat of the marriage was in Ireland, the respondent was precluded for exercising the options specifically given to him under the Brussels II Regulation. A choice of jurisdiction was available to him and he was legally entitled to exercise that choice to seek divorce in France.
(3) That the decision of the French Courts as to when the proceedings commenced was incorrect and should be the subject matter of a reference to the European Court of Justice.
The French Court held that the institution of proceedings was by the document issued on the 22 nd November, 2002, and rejected an argument that it only became seized of the position for divorce after the reconciliation meeting of February 2003 (after this Court had commenced the judicial separation proceedings of the 23 rd December, 2002). It therefore held. It was argued that this Court should refer this decision to the Court of Justice as being a question of Community law. I cannot agree with that proposition This was a decision of a French Court deciding when proceedings had commenced under French law. This finding was unappealed. No issue of Community law arises to be determined by this or any other court. It would be entirely inappropriate to make a reference to the European Court of Justice pursuant to Article 234 of the EC Treaty for a preliminary ruling as contemplated in the affidavit of the applicant's solicitor.
(4) A second point arises out of an affidavit of the applicant's solicitor dated the 18 th day of November, 2003, in which she avers that the applicant's "most serious concern" is that "the respondent's representatives and possibly the French Court are under the misapprehension that if the French Court has jurisdiction to determine the question of status in relation to divorce proceedings that the French Court has also the jurisdiction to determine property rights of the parties". On these grounds too this Court is asked to intervene. The precise nature of the intervention sought is unclear. This point may be dealt with shortly. In my view it would be unwarranted and irresponsible of this Court to act on the assumption that the French Courts will act other than in any way permitted by the relevant legislation, and it is clear that the Irish Courts have no role in the supervision of the French Courts in doing their legitimate business. It is noteworthy in this context that the financial expert appointed was appointed with the consent of the applicant.
For the reasons that I have already stated I have to reject the arguments made by the applicant.
In my view it is clear that the French Courts have jurisdiction in this case and that it is appropriate for this Court to declare pursuant to the provisions of Article 9 of Council Regulation (EC) 1347/2000 (Brussels II) and Regulation 220/2003 (Brussels IIA) that it has no jurisdiction in this matter.
Approved: O'Higgins J.