Introduction
1. This case concerns a judicial separation of two English citizens who married in Ireland in 1996. The wife, by special summons dated 4th June 2008, sought the separation order in the High Court. The husband, however, challenged her application on the basis that this court did not have jurisdiction firstly and secondly on the basis that she was not generally entitled to the separation on the facts of the case as applied to the Judicial Separation and Family Law Reform Act 1989 (‘the 1989 Act’). Judgment was delivered by Mr Justice Abbott on 27 July 2009.
2. In relation to the first main issue, that of jurisdiction, the learned trial judge concluded that as a matter of law and fact, that each member of this family had ‘habitual residence’ in Ireland, and as such, the court could accept jurisdiction in this case, insofar as indents 1 and 3 of Article 3(1)(a) of the Brussels II ‘bis’ regulations were satisfied. Furthermore, Abbott J. held that both parties were ordinarily residents of Ireland within the meaning of the 1989 Act throughout the year prior to the proceedings being initiated, and hence, notwithstanding that this criterion could be met in relation to the non-European jurisdiction, that this court had jurisdiction to deal with such residual matters that were necessary to enable the full exercise of the powers to make provisions under the 1989 Act.
3. With respect to the wife’s entitlement to a separation, Abbott J. concluded that the behaviour of the respondent husband was such that he had behaved in a way that the wife could not reasonably be expected to live with him, thereby satisfying the requirement of s. 2(1)(b) of the 1989 Act, entitling the wife to the separation.
4. Furthermore, Abbott J. held that though the terms of s. 2(1)(f) (that a period of at least one year had elapsed immediately preceding the date of the application in which a normal marital relationship had not existed) had not been met, that nonetheless the wife could invoke s. 2(1)(b) by relying on s. 4(2) of the 1989 Act, under which it is said that the continued cohabitation of the parties for a period of less than six months after the triggering of the unreasonable event occurred did not disentitle the applicant from so relying on the proof contained in s. 2(1)(b).
5. Finally, Abbott J. considered whether a stay should be placed on the non-European divorce proceedings that the husband had instituted in the Cayman Islands. The Court here ordered that the proceedings ought not be stayed, and that a ‘race to jurisdiction’ should be allowed, depending on the disposal of a decision in either jurisdiction.
6. The jurisdiction in relation to divorce and legal separation is set out in Brussels II bis (Council Regulation (EC2201/2003)). Article 3 of Brussels II bis relating to general jurisdiction provides as follows:
1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State
a. In whose territory:
i. The spouses are habitual resident, or ii. The spouses were last habitually resident, insofar as one of them still resides there, or iii. The respondent is habitually resident, or iv. In the event of a joint application, either of the spouses is habitually resident, or
v. The applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or vi. The applicant is habitually resident if he or she resides there for at least six months immediately before the application was made and is either a national of the Member State in question, or in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there;
b. Of the nationality of both spouses or in the case of Ireland or the United Kingdom, of both spouses.
7. Pursuant to Article 6 of Brussels II bis there is an exclusive nature of jurisdiction under Article 3 of Brussels II bis, such that any suit taken must be taken in accordance with Article 3. However, Article 7 of Brussels II bis provides that where no court of a Member State has jurisdiction, jurisdiction shall be determined by the laws of that State.
8. In that respect, s. 31(4) of the 1989 Act provides in relation to jurisdiction of the Irish Courts that: “the jurisdiction… shall only be exercisable where either of the spouses is domiciled in the State on the date of the application commencing proceedings or is ordinarily resident in the State throughout the period of one year ending on that date”. (emphasis added).
9. As such, two centrals issue identified by Abbott J. in these proceedings were:
a. Whether the applicant was an ordinary resident of Ireland, or domiciled there, for the purposes of the Brussels II bis and the 1989 Act throughout the period of one year prior to her application.
b. Whether it is possible to have concurrent or alternative habitual residences for the purposes of the Brussels II bis.
10. With respect to the first issue, Abbott J. referred to C.M. v. Delagacion Provincial de Malaga [1999] 2 IR 363, in which it was held that habitual residence is not a term of art, but rather a matter of fact to be determined on the evidence.
11. In this context H contended that W had never been an ordinary resident of Ireland or domiciled there. H contended in his notice of response that as such, the case ought to be heard by a court in the Cayman Islands, where he had instituted divorce proceedings concurrent with W’s application in this jurisdiction.
12. Abbott J. considered that the couple’s status as Caymanians, in particular W’s status following her application for Cayman Islands citizenship in 2007 relevant. He considered her status as a Caymanian genuine and that she was entitled to it, and did not consider, as H contended, that it was detrimental to her case for habitual residence in Ireland. Rather, Abbott J. was convinced that this case may be decided in line with O’K v. A [2008] 243, wherein the intention to settle and raise children in Ireland outweighed assertions that the primary residence of the family was in the USA, where the parties were citizens.
13. With respect to determining whether the couple were ordinary residents of Ireland throughout the period of one year prior to the application, Abbott J. formulated a test in order to purge any ambiguities arising from the use of ‘throughout’ in the statute such that temporary absences did not cause difficulties.
14. Abbott J. considered that for something to be an ordinary residence that a form of tenure was required, alongside an intention to return to it indefinitely. Such a principle avoided the bind that taking a holiday may vitiate the entitlement to ordinary residence throughout a period of time for many persons.
15. The principle, therefore, was stated by Abbott J. to be that you are an ordinary resident if:
a. Your residence is one you intend to return to indefinitely, despite absences
b. There is some tenure of a physical premises, however slight
c. The person has not lost ordinary residence by settling in another to the extent that the original residence is really only used as a holiday home.
16. Abbott J. was satisfied that family intend to reside indefinitely in Ireland and that the interests of the family were predominantly and mainly in Ireland, owing to the fact that the children’s interests are predominantly provided in Ireland, the husband’s business is, in effect administered in Ireland, and the general family life and network of friends exist primarily in Ireland.
17. However, Abbott J. was then required to consult the question of whether ordinary residence has an exclusive meaning. Abbott J. was similarly satisfied that the family had a residence in the Cayman Islands which they would return to indefinitely (albeit, only for 3 months of the year, with the other 9 months spent living in Ireland). As with Ireland, there was physical premises and Abbott J. was satisfied that the property in the Cayman Islands was not a holiday home for the purposes of his test.
18. Abbott J., in this respect, concluded, on the basis of persuasive English authorities to the effect, and the interpretation of the exclusive jurisdiction of Brussels II bis, that the interpretation of habitual residence must be exclusive. Abbott J. considered that were this not the case, then the working of the process of ascertainment of jurisdiction under Brussels II bis would fall into chaos in circumstances where the operation of the principle lis alibi pendens is invoked (in which the court is absolutely compelled to engage in a disciplined process to ascertain with certainty where the jurisdiction lies in the event of two courts of Member States being seised at one time, such as the instant case as a result of the Husband’s taking of proceedings in the Cayman Islands). Abbott J. continued to state that to conclude otherwise would deny the predictability and certainty in relation to jurisdiction and enforceability of court decisions which Brussels II bis is designed to provide.
19. In so concluding, Abbott J. recognised that parties may depending on the circumstances quite frequently change their habitual residence over time and perhaps many times or that on occasions the facts confronting a court seised of a matter to which Brussels II bis may relate may find itself perplexed with difficulty in face of deciding two balanced and conflicting arguments as to where the habitual residence lies. Notwithstanding these difficulties, Abbott J. concluded that the imperative remains that the court goes on to decide where the habitual residence lies.
20. In this respect, Abbott J. concluded that the habitual residence of the family in the instant case was in Ireland. A significant factor for Abbott J. in this respect was the question of the welfare of the children, as defined by s. 3(2)(b) of the 1989 Act, which require the court to consider whether an order of judicial separation is in the interest of the children. As Abbott J. was satisfied that the children’s interests were provided in Ireland, insofar as they are more integrated in the Irish community and have rights of residence therein, Abbott J. was satisfied to conclude, given the evidence that both the Husband and Wife were primarily concerned with their children’s welfare, that the intention of the parties to settle and raise their children in Ireland was clear on the facts and that therefore it could be plainly concluded that the family was ordinarily resident in Ireland throughout the year prior to Wife’s application.
The Stay
21. In relation to the stay, in the events that transpired, the Cayman Islands jurisdiction divorce proceedings were settled. On 26th March, 2010, a consent order was ruled in the Cayman Islands whereby it was agreed between the parties that they would apply for the judicial separation proceedings commenced in Ireland (the subject of these proceedings) to be dismissed and the divorce and ancillary relief proceedings would continue in the Court of the Cayman Islands, with financial and child issues to be mediated under the guidance of a former High Court Judge of the Family Division in England and Wales. All issues of child welfare (other than child maintenance), however, were adjudicated in Ireland, by Abbott J., which form the proceedings of D.W v. D.S [2011] IEHC 120.
22. The order of Abbott J. was therefore set aside.