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1. The issue in this case is whether a divorce which was applied for by the Respondent and granted unopposed at the New York State Supreme Court on 7th January, 1980 was valid, having regard to the domicile of the Applicant.

2. The parties were married on 20th April, 1963 in New York. The three children of the marriage are now adult.

3. By Deed of Separation made in Dublin on 21st November, 1977 where both parties appear to have been advised by different partners of the same firm of solicitors, the Respondent’s signature was witnessed by a secretary in a different firm of solicitors. The parties have lived separately since then and there is no family home.

4. The Applicant, an American citizen, came to Dublin to study in 1959 and completed her Master’s Degree in 1963. She met the Respondent, an Irish citizen, whom she agreed to marry and to follow him over to New York when she completed her studies. Her parents had lived in New York for at least 10 years prior to her birth. She and her siblings were reared in New York. The parents and siblings were there at the time of her return to get married and, indeed, at the time of her return to New York after her separation.

5. The parties returned from New York in September 1963. From 1963 to 1971 the Applicant resided at home looking after the three children of the marriage who were born in 1964, 1965 and 1969. The Respondent worked in a secondary school and subsequently at university.

6. In 1971 the Applicant commenced part-time teaching at the same university. In 1972 she was offered a full-time appointment for one year at the University of Maine in the United States which appointment was extended for a further year. As a result in August 1972 the parties and their children went to the United States. The Respondent returned with two of the children in early summer 1974 while the Applicant returned in late summer.

7. The Applicant says in her Affidavit that the marriage was going through a difficult period at that time and that there were many difficulties arising between them. They were also purchasing a house together with another couple to make the purchase easier. She says that finally and exceedingly reluctantly she decided to go to New York in late 1977 in order to obtain employment since the marriage had broken down and, she says, she had no financial support.

8. Prior to her leaving on her own, the Deed of Separation was signed between the parties on 21st November, 1977. The family home was sold at the same time.

9. The terms of that separation agreement are significant:-

10. It is common case that there was no revision of the said agreement.

11. The agreement was drawn up by McCann Fitzgerald Roche & Dudley, Solicitors and initialled BOB/ES.

12. The Respondent’s signature was witnessed by the secretary in Young & Company, Solicitors while the Applicant’s was witnessed by Harriet Spicer of London SW10.

13. No issue is taken by the Respondent that the parties were advised by two partners in McCann Fitzgerald Roche & Dudley.

14. The Respondent, as Plaintiff, instituted divorce proceedings in New York. A Decree of Divorce was obtained on 7th January, 1980. That decree incorporated the separation agreement executed on November 21st, 1977 which was annexed to the findings of fact and was stated in the decree to be incorporated by reference in the judgment.

15. The divorce judgment ordered and adjudged that the Plaintiff (the Respondent herein) “shall have judgment that the marriage of the parties is dissolved on the evidence found in the findings of fact and conclusions of law in accordance with the domestic relations law, Section 170, Sub (6), and that the custody of the named children and payment to the wife should be as per the separation agreement attached”.

16. The Applicant says that she did not oppose the said decree one way or another or seek any relief as she was in poor financial circumstances at the time.

17. She avers as follows:-

18. It is common case that the Applicant was living in New York at the time of the divorce and, indeed, has maintained rent controlled accommodation there since 1977.

19. However, the issue is not one of residence not indeed of citizenship but of domicile in relation to the Applicant’s preliminary issue as to the validity of the divorce.

20. Both the Applicant and the Respondent gave evidence which was sincere, heartfelt and genuine. The degree of respect they had one for the other evoked happier times when they were both struggling as academics in the 1960’s. However, both agree that their marriage had irretrievably broken down prior to the separation agreement in 1977.

21. The Applicant had spent her first summer in 1960 with her relatives in Cavan. In 1961 she travelled to Switzerland on an Irish passport. Seven years after they were married they got a house in the country where the Respondent was able to pursue his writing.

22. In relation to her return to New York in 1977 she was asked whether this was to re-establish herself in New York. She replied that this was not so, that she wanted to establish herself in Ireland. She could not accept the wording that she intended to revert to New York. It prejudiced her being. There was a great difference in the language used by Counsel and her intention.

23. She said she went back to New York to try to seek employment as she had in 1972 to 1974.

24. I regard the following evidence as significant:-

25. The Applicant was asked whether the divorce was with her agreement. She replied:-

26. In relation to the period between the separation agreement and divorce decree, a letter of 22nd August, 1978 from the Applicant to the Respondent was tendered in evidence.

27. The Applicant says that she wanted to keep the channels of communication open and disagreed that the letter was consistent with separation.

28. On 15th June, 1987 lawyers on behalf of the Applicant wrote to the Respondent in relation to paragraph 4 of the divorce judgment requesting the Respondent to provide for the maintenance of the youngest child who had visited the Respondent the previous summer.

29. It was put to the Applicant that she was looking for support through the divorce decree. She replied that there was a lack of legal structures in Ireland. There were no structures to sustain her life in Ireland.

30. A further letter from the Applicant’s lawyers in New York was sent to Solicitors on behalf of the Respondent on 3rd September, 1987 regarding access to the youngest child. The lawyer stated:-

31. The Applicant, when asked to comment on this letter, stated that the New York lawyer was operating New York law. On 6th October, 1987 the Applicant wrote to the Respondent. The opening paragraph was as follows:-

32. What is significant that in none of the correspondence opened to the Court is there any claim that the New York divorce lacked validity.

33. The first intimation was in a short letter written to the Respondent and his then wife, on 30th August, 1998 was as follows:-

34. The Applicant relied in comment to that letter that this was a confirmation of what she had always believed. She was simply seeking to have some weight made to the issue.

35. The Applicant’s evidence in regard to timing of the letter, after the Respondent had formed another relationship and had a child of that relationship, was that the Applicant was now concerned for herself and that the Respondent was free to do as he chose in his life (even) if he chose to be a bigamist. She had never sought to spread this scandal and never brought it to her children.

36. In relation to her residence in New York, the Applicant said she kept that on while she was working outside New York as she had no permanent work. She had no security. She stated:-

37. In relation to the short letter of 30th August, 1998 already referred to above, it was put to her that the letter suggested that she could get funding from the Respondent by proceeding to an Irish divorce. She replied that it did not suggest that she would be in pursuit of funding.

38. The Respondent stated that the Applicant’s decision to return to New York in 1977 was entirely her decision. It was a big disruption for the children. He accepted that she had an Irish passport and was shocked to hear of her doing menial work in New York in 1977 of which he was not aware.

39. In relation to the divorce obtained by the US Attorney, Mr. Reiter, he stated that he had never met him but just had correspondence with him. He had been approached by the Applicant who gave him her husband’s name. The divorce was based on the assumption of mutuality.

40. In relation to independent legal advice, the Respondent said that he did not know whether she had legal advice but would accept it if she said she had not. However, he would not agree that she had no independent legal advice in 1977.

41. He did not accept that it was her intention to come back. He does accept what she says in relation to a temporary position in Ireland in 1987 was to be nearer to the children.

42. The Respondent said that the letter of August 30th, 1998 came as a shock to himself and his present wife. The Applicant’s claim posed a profound threat to his present marriage and to his 12 year old daughter. The claim was without honour.

43. What is in issue is a pre-1986 divorce. The applicable law is that stated by the Supreme Court in W. -v- W., (1993) 2 IR 476: 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 (at 478), headnote 6.

44. Domicile is a mixed question of fact and law. Domicile is either of origin or of choice. The question is whether of “ animus manendi ” as stated in Lambert -v- An tArd Chlaraitheoir , (1995) 2 IR 372 where Kinlen J at 374:-

45. The Applicant felt that she had no choice and could not oppose the divorce and accordingly was under duress which, pursuant to the judgment of Kenny J in Gaffney -v- Gaffney, (1975) 133 at 139-40 applies to the termination of marriage as it does to the contracting of marriage.

46. The Applicant submits that divorce cannot be recognised where it is based on residence, notwithstanding G. McG. -v- D.W ., (McGuinness J., 14th January, 1999). The law is as stated in K.D. -v- M.C., (1985) IR 697 where the Supreme Court refused to extend the boundaries of recognition of foreign divorces beyond the test of domicile.

47. Finally, the justice of the application is that to recognise the New York decree would deprive the Applicant of all possible ancillary relief. It would accordingly be unjust and inequitable. This, on the basis of Viswalingham (1980) 1 FLR 15 CA, is a ground to refuse to recognise a foreign decree.

48. There is no longer a domicile of dependency ( C.M. -v- T.M ., (No. 2), (1990) 2 IR 52).

49. It is clear from the leading case of Mayo-Perrott -v- Mayo-Perrott , (1958) IR 336 that the Constitution does not interfere with the present law that dissolutions of marriage by foreign courts, where the parties are domiciled within the jurisdiction of those Courts will be recognised as defective here.

50. The Applicant goes further and say that with the removal of the constitutional ban on divorce and the implementation of the Family Law Divorce Act, 1996, Section 39(i), that the Courts can now grant a divorce on the basis of residence alone. On this basis G. McG -and D.W and A.R. (McGuinness J, 14th January, 1999) demonstrated a clear intention that the jurisdiction in matrimonial matters be no longer limited to the basis of domicile.

51. It is common case that the Applicant resided in New York from the end of 1977, after the sale of the family home and the separation agreement, to January 1980 when the divorce decree was granted in New York. It may not be necessary, however, to decide this issue on residency.

52. In relation to domicile, Sillar Hurley -v- Windbush, (1955) 1 IR per Budd J. held that the proper inference to be drawn where a person is resident in the jurisdiction is that they form the intention to permanently remain there indefinitely. A person could not alter his domicile by mere statements to the contrary.

53. In the present case there are no written statements, nor indeed any independent evidence, of the Applicant's statement of domicile.

54. Neither is it claimed that she had a domicile of dependency once she married the Respondent.

55. There is no doubt that she was resident in Ireland from the time she commenced her studies in 1959 to her separation and return to New York in 1977, other than the period of two years in the University of Maine. However, being here as a student, and acquiring an Irish passport, does not of itself prove domicile.

56. However, though not all of her children were born in this jurisdiction, maintaining a family home from 1963 to 1977 does provide evidence of animus manendi. One assumes that this may have been the basis for a domicile of dependency in the past.

57. However that is no longer the position since C.M. v T.M . As cited above. A wife needs to prove that she has abandoned her domicile of origin to a domicile of choice. It may very well be that this proof is satisfied so long as a wife remains married and resides primarily in the domicile of her choice.

58. In the present case the overwhelming evidence is that, after the separation agreement of 1977 that the Applicant either reverted to her domicile of origin or choose New York as a domicile of choice by maintaining her residence there for the past 22 years. While it is clear that the issue of domicile is as of January 1980 when the divorce decree was obtained, it is significant that the Applicant in going back to New York in 1977 to seek employment and agreeing to the terms of the separation agreement whereby custody would be given substantially to her husband, was reverting to the security of her domicile of origin.

59. In relation to the divorce it seems clear to me that, whatever pressure there might have been to agree, that the Applicant used the New York divorce in 1987 in relation to maintenance for her youngest child. It is inconsistent to maintain that as there was no system and no structure in Ireland at the time that she had no alternative.

60. I find that in relation to her lawyer's letter of the 3rd of September, 1987 and the 6th of October, 1987 that her lawyer recognised the jurisdiction of New York law and the validity of the divorce decree.

61. It seems clear that the Applicant’s contention that, while she was divorced in New York, that such divorce did not apply in Ireland to be at variance with her moving letter of August 22nd, 1978. She hoped that her husband would initiate divorce as quickly as possible. It was her wish too to be free (" free of the nightmare of insecurity which has been my present existence ").

62. Indeed, in relation to the allegation of duress or pressure, this letter would seem to me to disprove passivity, let alone pressure or duress.

63. The Court has been asked to deal with the preliminary issue in these divorce proceedings. It seems clear to me that the domicile of the Applicant at the time of the divorce of January, 1980 was that of New York State.