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1. These proceedings came before the Court in the form of a petition for a decree of nullity in which the Petitioner claimed a declaration that his marriage to the Respondent was null and void by reason of his prior subsisting marriage to the Notice Party.

2. The factual background may be briefly summarised. The Petitioner Mr. McG married the Notice Party Miss C. in a Roman Catholic Church in Dublin on the 27th October 1967. Both parties were domiciled and resident in Ireland at the time of the marriage ceremony. There were two children of the marriage. The marriage irretrievably broke down in or about the year 1978/79 and the parties separated. They entered into a Deed of Separation on the 11th April 1979. As their financial and other circumstances changed over the next few years they entered into further agreements, amending the first Separation Deed. The final agreement was executed in 1984.

3. It appears that both parties embarked on new relationships. As far as the Notice Party was concerned, she formed a relationship with a Mr. R. and from in or about March 1983 she resided continuously as man and wife with Mr. R. in England. On the 2nd October 1983 she executed a Deed Poll in Dublin adopting the name of R.

4. On the 20th August 1984 the Petitioner issued divorce proceedings in England. In his divorce petition he based the jurisdiction of the English Court on either the English domicile or alternatively the residence for more than one year in England

5. The divorce was not contested and was granted on the ground of the Notice Party's adultery with Mr. R. The Court approved the parties' proposed arrangements of the children of the marriage and the financial settlement. A decree absolute issued on the 12th February 1985. Subsequent to the divorce the Notice Party married Mr. R. in England.

6. There is one child of that marriage, now aged eleven.

7. The petitioner, Mr. McG., who was still domiciled and resident in Ireland, married the Respondent Miss W. on the 25th November 1985 at Marylebone Registry Office in London. Miss W. was a British citizen domiciled in England. There are two children of this marriage born in 1987 and 1990. It appears that this marriage has also broken down and that the parties have reached an amicable settlement.

8. The Petitioner's nullity proceedings have followed a somewhat unusual course. The Citation was issued pursuant to an Order of the Master of the High Court made on the 10th March 1998. It was served together with the Petition and Affidavit according to the Rules of the Superior Courts. An Answer dated the 6th July 1998 was filed by the Respondent which basically admitted the facts set out in the Petition. Application was then made to the Master for the customary order regarding time and mode of trial and the questions to be tried. No submissions either factual or legal were made before the Master in regard to the English divorce but it appears that the Master took the view that the English divorce was of no effect in Irish law and that the parties had committed bigamy. He refused the Order sought in the nullity proceedings and directed that the papers be sent to the Director of Public Prosecutions. I was informed by Counsel at the hearing before me that a number of persons, including the Notice Party (who was not then a party to the proceedings) had been interviewed by the Garda Siochana in connection with a possible charge of bigamy

9. The Petitioner, who was not unnaturally somewhat concerned, appealed the Master's Order to this court. The learned Budd J. overturned the Master's Order and fixed time and mode of trial but felt that there no was no action open to him to take in regard to the transfer of the papers to the Director of Public Prosecutions.

10. Subsequently, in view of the fact that Mrs R. had by that time a vital interest in the outcome of the proceedings, she was joined as a Notice Party by Order of Laffoy J. on the 23rd October 1998.

11. When the proceedings came on for hearing before this court, Senior Counsel for the Petitioner, Mr. Durcan, submitted that, while the proceedings were in the form of a nullity petition, the real concern of the Petitioner was to ascertain his true marital status according to the law of this country. He was not urging the court to take any particular course with regard to the validity or otherwise of the English divorce, although he was, of course, concerned about the possibility of a criminal charge of bigamy. Senior Counsel for the Notice Party, Mr. O'Donnell stressed that the Notice Party had been shocked and distressed by being interviewed by the Garda Siochana and was most anxious to establish that her marriage to Mr. R. was a valid and legal marriage in this country, where she now resides.

12. All parties were in agreement that it would be preferable for the court to treat the petition for a declaration of nullity as if it were an application pursuant to section 29(1)(d) or (e) of the Family Law Act, 1995 in regard to the recognition of the 1985 English divorce of the Petitioner and the Notice Party.

13. It appeared to me that the basic question at issue in the proceedings was whether the 1985 English divorce was entitled to recognition in this State. From this the validity or otherwise of both subsequent marriages would flow. I accordingly agreed to proceed as suggested by Counsel for the parties and heard the relevant legal submissions.

14. At the conclusion of the hearing before me , since the matter was one of urgency due to the possible pending criminal proceedings, I held that the divorce between the Petitioner and the Notice Party was entitled to recognition in this State and that accordingly the marriage between the Petitioner and the Respondent was a valid marriage as was the marriage between the Notice Party and Mr. R. I also directed that any criminal proceedings or investigations directed thereto should cease forthwith.

15. Since the issues of law which arose in the proceedings were of general public importance I reserved the setting out of the reasons for my decision.

16. It is clear from the evidence before me that from the point of view of the laws of England the divorce granted to the Petitioner and the Notice Party in 1985 was properly within the jurisdiction of the court and was undoubtedly valid. Both subsequent remarriages in England were equally valid. No issue arises as to the position in English law.

17. The question of the recognition in Irish law of divorces granted by the Courts of a foreign jurisdiction is one which has been considered from time to time both by this Court and by the Supreme Court. As is well known, the line of cases from Mayo-Perrott v. Mayo-Perrott (judgment of Kingsmill-Moore J) [1958] IR 336 to Gaffney v . Gaffney [1975] IR 133 established that such a divorce would be recognised in this jurisdiction if it was granted by the Court of the common domicile of the parties. This rule of recognition was based on the older English recognition rule set out in Le Mesurier v. Le Mesurier [1895] AC 517. It was also established in the context of the dependent domicile of the married woman, so that in effect it meant that a divorce granted by the Court of the husband's domicile would be recognised.

18. Over the years doubts were cast by a number of judges as to the validity of the dependent domicile rule in view of the guarantees of equality contained in Article 40 of the Constitution. In C.M. v. T.M. (No. 2) [1990] 2 IR 52 the learned Barr J. held that the common law rule that the domicile of a married woman was dependent on that of her husband was swept away by principles of equality before the law and equal rights in marriage as between men and women which are enshrined in the Constitution. This decision was upheld by the Supreme Court in W. v. W. [1993] 2 IR 476.

19. Meanwhile the Oireachtas had moved by Statute to abolish the dependent domicile rule and to amend the divorce recognition rule in the Domicile and Recognition of Foreign Divorces Act 1986. Section 5(1) of this Act provides that:-

20. However, both the statutory abolition of the rule of dependent domicile and the amendment of the recognition rule set out in section 5 (1) apply only from the 2nd October 1986 onwards. Since in the instant case the divorce of the Petitioner and the Notice Party was granted in February 1985 the 1986 Statute has no application and the question of recognition falls to be dealt with under the common law.

21. In the case stated by O'Hanlon J. the questions put to the Supreme Court were, in summary, whether the dependent domicile rule survived the enactment of the Constitution and, if not, what effect (if any) this had on the common law rule in regard to the recognition of foreign divorces as it applied prior to the 2nd October 1986.

22. Having held that the dependent domicile rule did not survive the enactment of the Constitution, the Supreme Court went on to hold that the common law rule to be applied to the period prior to the 2nd October 1986 is that a divorce will be recognised if granted by the court of a country in which either of the parties to the marriage was domiciled at the time of the proceedings for divorce. In reaching this conclusion the Court held that Article 41, s.3 of the Constitution provides for the regulation and recognition of foreign divorces and since there is no statutory regulation prior to the Act of 1986 it must therefore be regulated by a common law rule before that date. It also held that common law rules are judge-made law and may be modified depending on the current policy of the Court.

23. When one considers the development of the common law rules of recognition of foreign divorces both in this country and in England it is clear that from Le Mesurier [1895] AC 517 onwards great emphasis has been laid on the need to avoid "limping marriages" - the situation where an individual is held to be married in one jurisdiction but unmarried in another. In Le Mesurier itself reference is made to "the scandal which arises when a man and a woman are held to be man and wife in one country and strangers in another". Later, in Indyka v. Indyka [1966] 3 All ER 583 Diplock L. J. in the Court of Appeal set out the policy of the English Courts (at page 587):-

24. In this jurisdiction the same policy was stressed by Kingsmill-Moore J. in his judgment in Mayo-Perrott v. Mayo-Perrott [1958] IR 336. In a vivid passage he stated (at page 350):-

25. This passage was quoted with approval by Blayney J. in his judgment in W. v. W. He concludes (at page 504):-

26. Over a time in English law the domicile-based recognition rule was expanded to include such criteria as habitual or ordinary residence for a specified period. In general this expansion reflected the widening of the jurisdictional bases on which the English Courts themselves granted decrees of divorce. In his judgment in W. v. W ., Blayney J. surveyed two leading English cases - Travers v. Holley [1953] P.246 and Indyka v. Indyka [1966] 3 All ER 583 and [1968] 1 AC 33 - in which this process of change and expansion in the recognition rule took place. While Blayney J. acknowledges (at page 500) that these cases were decided in a very different legal and factual context from W. v. W. , he states that:-

27. At the time when Travers v. Holley was decided Section 13 of the English Matrimonial Causes Act 1937 permitted a deserted wife resident in England to sue for divorce even though her husband had changed his (and therefore her) domicile since deserting her. A similar statutory provision applied in New South Wales, the jurisdiction in which the divorce at issue in that case was granted.

28. The learned Blayney J. (at page 501) quotes a passage from the judgment of Hodson L.J. in that case:-

29. Following his detailed discussion of the judgments of the Court of Appeal and the House of Lords in Indyka v. Indyka the learned Blayney J. concluded firstly that the avoidance of limping marriages was one of the main objects of the common law recognition rule and was public policy. He went on to state (at page 504):-

30. The Courts of this country up to and including the W. v. W. case dealt solely with a recognition rule based on the domicile of the parties. The domicile based recognition rule was in essence founded on Article 41.3.3 of the Constitution as interpreted by the Supreme Court in Mayo-Perrott and in Gaffney v. Gaffney . The recognition rule was carried over in the form in which it had applied in English law prior both to the Constitution of the Irish Free State and to the Constitution as established in 1937. In the context of the then constitutional ban on divorce contained in Article 42.3.2 the conditions which could give rise to developments similar to those which took place in English law simply did not exist. As was said by the learned Blayney J. , cases such as Travers v. Holley and Indyka v. Indyka were decided in a very different legal and factual context. Senior Counsel for the Notice Party, Mr. O'Donnell, (with support from Senior Counsel for the Petitioner, Mr. Durcan) submitted that since the decision of the Supreme Court in W. v. W. the constitutional, legal and factual context in this jurisdiction has dramatically changed. He described the changes in the law relating to divorce in Ireland as being of seismic proportions and stated that there had been a dramatic shift in public policy. Bearing in mind the principle enunciated by the Supreme Court in W. v. W. that common law rules are judge-made law and may be modified in the light of the present policy of the Court, Mr. O'Donnell submitted that this Court should now consider further development of the common law recognition rule. There is no doubt that Mr. O'Donnell is correct in his submission that the law in regard to divorce in Ireland has been dramatically altered since 1993, firstly by the passing by Referendum on the Fifteenth Amendment to the Constitution and secondly by the enactment by the Oireachtas of the Family Law (Divorce) Act 1996 (the Act of 1996). This State now itself possesses a divorce jurisdiction both under the new Article 41.3.2 of the Constitution and under the Act of 1996.

31. Bearing in mind the dicta concerning reciprocity contained in Travers v. Holley and in Indyka it is important to note the terms of Section 39 (1) of the Act of 1996 which sets out the bases for the exercise of the Court's jurisdiction in relation to divorce as follows:-

32. It is of interest to note that the same statutory bases are provided in the Family Law Act 1995 for the Court's exercise of its jurisdiction to make declarations as to marital status (Section 29) and to grant decrees of nullity (Section 39). This demonstrates a clear policy of the legislature that jurisdiction in matrimonial matters is not limited to a basis of domicile, but extends to a basis of ordinary residence for one year prior to the issue of the relevant proceedings

33. In his judgment in the Court of Appeal in Indyka v. Indyka , Diplock L.J. stated (at page 589):-

34. It would seem to me both logical and reasonable that the Irish common law recognition rule should similarly be extended to cover cases where under the statute law the Irish Courts claim entitlement not alone to dissolve marriages but also to annul them and to make far reaching declarations as to marital status. The well known policy of the comity of Courts alone would support such an extension of recognition.

35. While accepting the reason and logic of extending the common law recognition rules in this way, the Court must also consider the difficulty that may arise because the Act of 1986 provides only for the recognition of divorces granted in the country where either spouse is domiciled. If, therefore, this Court extends the common law rule of recognition to reflect the jurisdiction set out in the 1995 and 1996 Statutes, is it usurping the function of the Oireachtas to enact an amendment to the Act of 1986? Some assistance may, I think, be found in the Act of 1986 itself. It appears to me that the primary purpose of the Act is to abolish the dependent domicile of married women; it followed on from that abolition that fresh consideration had to be given to the recognition rule based on the common domicile of spouses. The actual wording of section 5 (1) is notable:-

36. This wording does not include any phrase such as "if, but only if," - which, it should be noted is included in the jurisdictional rules for the Irish Courts set out in Section 39 of the Act of 1996 and the comparable sections of the Act of 1995. Section 5(1) limits itself to amending the then existing common law rule based on domicile; it does not purport to deal with any other form of recognition. Nor, I think, does it prevent the Court from developing the rules of recognition in reliance on the decision of the Supreme Court in W. v. W. that common law rules are judge-made law and may be modified depending on the current policy of the Court.

37. It seems to me that in considering in the instant case "what the present policy of the Court should be" I "may not leave out of account" the provisions of the Act of 1996, which is the current major statutory provision in regard to divorce. It does not seem to me that it would in reality be inconsistent with the Act of 1986 that this Court "as a matter of public policy should independently modify the judge-made rule in order to do justice" to the three parties in this case.

38. I note also that Mr. Alan Shatter, in the fourth edition of his work "Family Law", when considering the subject of the recognition of foreign divorces, states at page 424 paragraph 10.40:-

39. Mr. Shatter goes on to suggest that the Courts are not precluded by the 1986 Act from further developing the common law.

40. I should also refer to and consider the judgment of the Supreme Court in K.D. (C) v. M.C. [1985] IR 697, in which the Court refused to recognise an English divorce on the test of "real and substantial connection" as set out in Indyka v. Indyka . In that case, which was a petition for nullity based on the prior subsisting marriage of the Respondent, the marriage had been the subject of an English divorce decree. The High Court (Carroll J.) found that the Respondent husband was domiciled in Ireland at the time of the divorce (which was pre-1986) and the divorce could not be recognised. The Respondent appealed to the Supreme Court and there raised the ground of real and substantial connection. It was held by the Supreme Court in dismissing the appeal that since the evidence before the Court did not show a real and substantial connection between the parties in England the Court would be deciding a point of law upon theoretical facts which the Court should decline to do. It also held that notwithstanding the anomalies existing in the law of domicile, the test as laid down in Indyka's case could not be considered as an alternative to the domicile test, when the domicile test was the only test raised in the High Court and arising on the facts of the case. The learned Finlay C.J. in addition held as a fundamental principle that the court should not hear and determine an issue which had not been raised in the High Court.

41. It will be seen from this that the Supreme Court rejected the extension of the recognition rule on narrow grounds and on the particular facts of the case. The case was also decided in a pre-1986 context where only the old rule of common domicile applied; it was also, of course, prior to either W. v. W. or the recent constitutional and statutory changes. In the present changed circumstances I do not think that this case can be taken as authority that no possible extension of the recognition rules beyond the factor of domicile can be permitted.

42. At page 702 the learned Finlay C.J. pointed out:-

43. This limitation, of course, is no longer applicable, given the amendment of Article 41 and the Act of 1996. There is no suggestion in the above passage by the learned Finlay C.J. that he did not in principle accept the argument made by the learned judges in Indyka v. Indyka .

44. I am, of course, conscious that the main issue in the instant case has not been fully argued, in the sense of fully contested, before me. Both Mr. O'Donnell and Mr. Durcan of behalf of their respective clients have urged the court to extend recognition to the divorce in question; the opposite contention has not been canvassed. However, both Counsel through written and oral submissions have very fully and fairly opened the authorities to me and have laid out their arguments in a fair and responsible way. Given that I myself have had considerable familiarity with this area of law over the years, I do not think that I have been unduly disadvantaged by the lack of what is often described as a fully fought case.

45. On the facts of the present case the Petitioner and the Notice Party were granted a divorce by the English Courts which was valid in English law. At the time, in 1985 they had been separated for at least six years. There was no prospect of reconciliation, both parties having formed new relationships. Proper provisions, as found by the English Court, had been made for the children and for the spouse. The Notice Party had been ordinarily resident within the jurisdiction of the English Court for more than one year. While, of course, the grounds on which a foreign divorce is granted are not strictly relevant to the issue of recognition, one cannot but note that on these facts the parties could now under the Constitution and under the 1996 Act obtain a divorce in this country. This Court is not being asked to recognise a hasty or ill-considered divorce, nor would recognition of this divorce amount to a denial of substantial or natural justice (see judgment of Barrington J. in L.B v. H.B. (High Court unreported July 1990) a case which involved a fraudulent divorce in France). All three parties have arranged their lives and their day to day realities on the basis of the validity of the English divorce and their subsequent re-marriages in England. As a result of what Kingsmill-Moore J. described as "the anomalous, if not scandalous state of affairs.....whereby legitimacy and criminality could be decided by a flight over St. George's Channel" they now find themselves not alone unsure of their marital status but also the subject of actual criminal investigation.

46. In the light of the legal considerations set out above I consider that the decree of divorce granted by the English Court to the Petitioner and the Notice Party on the 12th February 1985 is entitled to recognition under Irish law. It follows that both the marriage between the Petitioner and the Respondent and the marriage between the Notice Party and Mr. R. are valid marriages. I conclude by referring to a dictum of Diplock L.J. in the Court of Appeal in Indyka's case (at page 591):-

47. It appears to me that this dictum equally applies to the common law as administered in the Courts of Ireland and that it is particularly apposite to the present case.