PUBLIC policy in the State ordained that non marital cohabitation did not and could not have the same constitutional status as marriage, a High Court judge has said.
Mr Justice Kelly said yesterday he believed that, as a matter of public policy, cohabitation agreements could not be enforced. He rejected what was believed to be the first "palimony" claim brought in Irish courts and added that he believed Irish law did not recognise the term "palimony".
A company director, Mr Colm utterly, asked the court to strike out claims against him by a fashion designer, Ms Bernadette En, is, with whom he had cohabitated. Mr Butterly, of Butterly Business Park, Artane, Dublin, claimed the action was frivolous and vexatious.
Mr Justice Kelly, in his judgmeat, said the claim by Ms Ennis, of Castleknock Park, Castleknock, Co Dublin, for damages for breach of contract would be struck out.
A claim for damages for alleged misrepresentation relating to Ms Ennis's role in a company was allowed to proceed to trial. It is alleged Mr Butterly represented to Ms Ennis that she would become a director and shareholder in Choppard International Ltd and share in its profits. Ms Ennis contends she discontinued her business on foot of that representation.
At the original hearing, Mr Michael McDowell SC, for Mr Butterly, said Ms Ennis was claiming she broke up the relationship because of his client's "infidelity" and he was obliged to pay her maintenance. She was putting herself in the posit ion of a wife who had discovered "infidelity".
The court was told Mr Butterly had lived apart from his wife since 1977. Ms Ennis had also been married and separated since 1978.
Ms Ennis, in an affidavit, said they met in 1984 and decided if legislation was passed enabling them to obtain dissolution of their marriages, they would marry. From 1985 to 1993, they lived together. In 19,93, she learned Mr Butterly was intermittently cohabiting with his wife and she broke off the relationship.
Mr Butterly withdrew guarantees to her fashion design business and the company was liquidated. She started a new fashion design business. In 1993, Mr Butterly begged her to re establish their relationship. He again promised to marry her and begged her to live with him as wife and homemaker. In September, 1993, she again agreed to marry.
Ms Ennis said she had given up work at Mr Butterly's prompting and become dependant on him financially. In September, 1994, she discovered Mr Butterly was having an intimate relationship with another woman and told him she would not marry him. He left their home at her request but promising she would be financially secure, said Ms Ennis.
Mr Butterly, in an affidavit, said while he discharged some of Ms Ennis's household expenses, it was voluntary. He denied he persuaded Ms Ennis to close her business. She induced him to act as guarantor for her business debts, which he did.
Mr Butterly claimed he never attempted to persuade Ms Ennis to give up her business career and become dependent.
Mr Justice Kelly said the first relief sought was damages for breach of contract. It appeared the only contract pleaded was a twofold one - an agreement to marry and an agreement to live together as man and wife until marriage would be possible.
Mr Butterly relied on provisions of the Family Law Act, 1981, which abolished the action for breach of promise of marriage. In his (judge's) view, that enactment was fatal to any claim by Ms Ennis to derive from breach by Mr Butterly of an agreement to marry her.
Even before 1991, at common law it had been held in England that a promise of a married person to marry one who knew that person was already married was unenforceable as being against public policy.
Mr Justice Kelly referred to the second contractual arrangement alleged, that pending marriage, Ms Ennis would live with Mr Butterly as a wife might and discontinue her business. Mr Butterly contended that an agreement to cohabit, whether pending marriage or not, could not give rise to enforceable rights.
Historically, applications to seek enforcement of cohabitation contracts in the US had been treated much the same as in England. They were invariably rejected, either on grounds of immorality or lack of consideration. Things changed with a decision of the Californian supreme court in the Marvin v Marvin case in 1976. That case appeared to have spawned the expression "palimony".
The position in England and Wales appeared to be clear. In 1990, a judge stated English law recognised neither the term palimony nor the obligation to which it gave effect.
Mr Justice Kelly stated: "In my view, the law in this country is no different and, if anything, would lean more strongly against such a concept having regard to the special position of marriage under the Constitution."
But did this mean that agreements, the consideration for which was cohabitation, were incapable of being enforced?
"In my view it does since otherwise the pledge on the part of the State, of which the court is one organ, to guard with special care the institution of marriage would be much diluted," said Mr Justice Kelly. To permit an express cohabitation contract to be enforced would give it similar status in law to a marriage contract.
Mr Justice Kelly said if Ms Ennis's claim was truly a palimony one (which he doubted) he believed Irish law recognised neither the term nor obligation to which it gave effect. Consequently, it must be struck out.
If it was not a palimony claim, it was clearly an attempt to enforce a contract the consideration for which was wifely services being rendered on the part of a mistress. Such contracts were always regarded as illegal and unenforceable.
A claim of this type arising out of such a relationship must, in his view, be struck out.