S -v- S
High Court
Judgment was delivered by Mr Justice Henry Henry Abbott on July 27th, 2009.
Judgment
There were two preliminary issues to be decided in an application for judicial separation made by the wife in the case: whether the Irish court had jurisdiction to determine the proceedings, involving a family that spent only part of the year in Ireland, and whether the application met the conditions for a judicial separation. Mr Justice Abbott decided Irish courts did have jurisdiction and the wife was entitled to bring the proceedings.
Background
Both parties were English. The husband had both a business and a home in the Cayman Islands. The couple met in England in 1990 and became keen to live in Ireland, as they were both interested in horse-racing. In 1993 the husband bought a property in Ireland. They married here in 1996 and had six children over the next eight years.
In 1998 he bought a stud farm and house in Ireland, and renovated the house. The family moved into it in 1999, and the husband ran a business from this estate.
All the children were born in Ireland and attended primary school here, with the eldest attending boarding school in England when he finished primary education. However, the family spent some months in the Caymans each year in the late winter and early spring, where they kept up with the Irish curriculum.
In 2007 the wife applied to the Caymanian authorities for the right to be a Caymanian. In her application, she stated she was a permanent resident of the Republic of Ireland and gave her Irish address as the address she had lived at for more than six months prior to coming to the Caymans.
In December 2007 the family travelled to the Caymans and the husband left the islands in early January. They returned to Ireland in mid-March, as they usually did. During this time he wrote to his wife informing her of his intention to get a divorce. However, he didn’t pursue this and their relationship resumed.
At the end of April 2008 the wife met another man and embarked upon a relationship with him. On May 8th, she filed for a judicial separation, submitting grounding affidavits in October of that year.
When the wife sought a judicial separation, the husband challenged the jurisdiction of the Irish courts to hear the case on the grounds that she was not “habitually resident” in Ireland. He also questioned whether the Irish court should hear the case on the grounds of forum conveniens, claiming that the Caymans would be a more convenient forum.
He also asked whether the terms of the Judicial Separation and Family Law Reform Act 1998 had been met by the wife. This lists the grounds on which a judicial separation may be sought, including a separation of at least a year, adultery, desertion, that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with him or her and that the court is satisfied that the relationship had broken down such that a normal marriage relationship had not existed for at least a year.
The husband stated that up until the wife met another man at the end of April 2008, they had a normal marriage. They had not been separated for the requisite year, the marriage had not broken down and none of the other conditions was met.
Decision
In relation to “habitual residence”, Mr Justice Abbot outlined the applicable principles as follows: the residence should be one to which a person intends to return indefinitely despite temporary absences; there should be some tenure of a physical premises; the person ordinarily resident in a location has not lost that ordinary residence by reason of settling in another residence to the extent that the “ordinary residence” is now used as a holiday home.
Applying this to the case, he said the family had established itself with both an Irish and a Cayman residence, spending approximately three months each year in the Caymans and nine months in Ireland; the centre of interest of the family was predominantly and mainly Ireland, in that the children were born and primarily brought up and educated in Ireland, and the husband’s business was in effect administered from his home in Ireland.
He therefore found as a matter of law and of fact that the habitual residence of the family, and of each member of the family, was Ireland, and the court might proceed on that basis to accept jurisdiction of the proceedings.
Turning to the issue of the entitlement of the applicant to seek judicial separation, he focused on sections 2 (1) (b) and (f) of the 1989 Act. These deal with circumstances where the respondent “has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent” and where the marriage has broken down such that the court was satisfied in all the circumstances that “a normal marital relationship” had not existed for at least a year before the application.
Mr Justice Barron described the marriage in detail, referring in particular to “continued criticism” of the wife by the husband, a controlling attitude in relation to money spent by the wife, the failure of the husband to make any arrangement for the common ownership of the family home or any other significant item of wealth and “numerous bouts of anger and aggression”. A continuing feature of the wife’s response to this behaviour was her acceptance of fault and intention to reform.
He considered that there was a watershed in the relationship when the wife received a letter from the husband early in 2008 indicating his interest in a divorce.
He considered that the crucial element of a “normal marital relationship” was the consent of the spouses to cohabit, characterised by continuous negotiation, co-existence and compromise. While there were extensive elements of controller/victim relationship between the husband and wife, the wife consented to such a relationship. She therefore did not succeed on the ground that a normal marital relationship did not exist.
However, he considered the letter from the husband raising the divorce when he had left the Caymans on what could be regarded as a trial separation, leaving the wife on her own with five children, coupled with the outbreak of a violent incident that Christmas Eve, amounted to behaviour of a nature that the wife could not reasonably be expected to cohabit with him. Therefore the criteria in section 2 (1) (b) of the 1989 Act were met and she was entitled to seek a judicial separation.
The full judgment is on www.courts.ie