H196 A.F v S.F [2007] IEHC 196 (04 May 2007)


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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.F v S.F [2007] IEHC 196 (04 May 2007)
URL: http://www.bailii.org/ie/cases/IEHC/2007/H196.html
Cite as: [2007] 4 IR 326, [2007] IEHC 196

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Judgment Title: A.F v S.F

Neutral Citation: [2007] IEHC 196


High Court Record Number: 2005 73M

Date of Delivery: 04 May 2007

Court: High Court


Composition of Court: Abbott J.

Judgment by: Abbott J.

Status of Judgment: Approved





Neutral Citation Number: IEHC [2007] IEHC 196
THE HIGH COURT
FAMILY LAW
[2005 No. 73 M]
IN THE MATTER OF THE FAMILY LAW ACT, 1981 AND
IN THE MATTER OF THE FAMILY LAW ACT, 1995 AND
IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996 AND
IN THE MATTER OF THE FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT, 1976
BETWEEN
A.F.
APPLICANT
AND
S.F.
RESPONDENT
JUDGMENT of Mr. Justice Henry Abbott delivered on 4th day of May, 2007.
This is an application by the respondent for an order dismissing the within proceedings as showing no cause of action, being vexatious and an abuse of this Honourable Court and being a duplication of proceedings under the High Court Record 2004/534 P. The application has been brought by notice of motion returnable to the 13th day of October, 2006, in which other relief relating to the action is claimed and on 13th October, 2006, this court directed that the issue raised by the respondent, that the within proceedings are vexatious and show no cause of action, to be tried as a preliminary issue. This preliminary issue was heard on 24th April, 2007.

Background Facts
The parties herein commenced a relationship together in or about 1977. The applicant claims that the respondent proposed marriage to her in or about October 1977, and presented the applicant with an engagement ring in December, 1977, and that the applicant accepted the respondent’s proposal of marriage. These three allegations are vigorously denied by the respondent. It is common case that the parties began to co-habit with each other in or about February, 1978, until October, 2004, when the relationship broke down between the applicant and the respondent. The respondent claims that there were breaks in the co-habitation. There are three children born of the relationship between the applicant and the respondent in 1978, 1980 and 1983. At all material times the parties were married to third parties and each of them have children by their marriages, the applicant having one child born in 1971 and the respondent having two children born in 1972 and 1973. The applicant alleges that the parties during the course of their relationship, purchased a number of properties in their joint names. They are also directors/shareholders in various limited liability companies allegedly set up by them. Again these allegations in relation to property and corporate arrangements are vigorously denied by the respondent.
The relationship between the parties herein broke down in or about October 2004. The applicant claims that she was anxious to regularise all outstanding matters pertaining to the breakdown of the relationship with the respondent. The applicant issued a special summons on 15th September, 2005, seeking the following relief
1. An order pursuant to s. 36 the Family Law Act, 1995, and s. 44 of the Family Law (Divorce) Act, 1996 determining the extent of the applicant’s and the respondent’s respective interest in the title to or possession of the said properties as set out in the schedule to be filed with the special summons.
2. An order pursuant to s. 5 of the Family Law Act, 1981
3. An order pursuant to s. 5(a) of the Family Law (Maintenance of Spouses and Children) Act, 1976, seeking a periodical payment order for the benefit of the dependent child of the relationship.
Statutory Background
    In s. 2 of the Family Law Act, 1981, it is provided as follows:-
      “(1). An agreement between two persons to marry one another whether entered into before or after the passing of this Act, shall not under the law of the State have effect as a contract and no action shall be brought in the State for the breach of such an agreement, whatever the law applicable to the agreement
      (2). Subsection (1) shall not have effect in relation to any action that has been commenced before the passing of this Act.”
Section 5 of the Family Law Act, 1981, deals with the property of engaged couples as follows:-
      “(1) Where an agreement to marry is terminated, the rules of law relating to the rights of spouses in relation to property in which either or both of them has or have a beneficial interest shall apply in relation to any property in which either or both the parties to the agreement had a beneficial interest while the agreement was in force as they apply in relation to a property in which either or both spouses has or have a beneficial interest.
      (2) Where an agreement to marry is terminated, s. 12 of the Married Women’s Status Act, 1957 (which relates to the determination of questions between husbands and wives as to property) shall apply, as if the parties to the agreement were married, to any dispute between them or claim by one of them, in relation to property in which either or both had a beneficial interest while the agreement was in force as they apply in relation to property in which either or both spouses has or have a beneficial interest.”
Section 44 of the Family Law (Divorce) Act, 1996 provides as follows:-
      “Where an agreement to marry is terminated, s. 36 of the Act of 1995 shall apply, as if the parties to the agreement were married to each other, to any dispute between them or claim by one of them, in relation to property in which either or both of them had a beneficial interest while the agreement was in force”.
The relevant part of s. 36 of the 1995 Act provides as follows
      “(1) Either spouse may apply to the court in a summary manner to determine any question arising between them as to the title or possession of any property.
      (2) An application to it under subs. (1), the court may-
(a) make such order with respect to the property in dispute (including an order that it be sold or partitioned) and as to the costs consequent upon the application, and
(b) Direct such inquiries, and give such other directions, in relation to the application.
as the court considers proper.”
The Constitutional Background
The relevant provisions of the Constitution (which relate to the family) is
Article 41.
      “(1)° the State recognises the Family as the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptable rights, antecedent and superior to all positive law
      (2)° the State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State
      (2)1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
      (2)°. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
      (3)1° The State pledges itself to guard with special care in the institution of Marriage, on which the family is founded, and to protect it against attack”.
There is established authority for the proposition that the family envisaged in Article 41 of the Constitution is the marital family. However in Article 41.2.1° and 2° the role of the woman in the home and the mother is not described with reference to the family and it is arguable that Article 41.2 applies to a woman or mother in the home, whether that child is a marital child or not.
Procedural Background
Order 19, Rule 28 of the Rules of the Superior Courts provides:-
      “The Court may order any pleadings to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just”.
There is also an inherent jurisdiction of the court to dismiss proceedings on the grounds that the same are an abuse of process. The respondent relied on both grounds.
In relation to the application based on Order 19, Rule 28, the respondent relied on the authority of the judgment of Kelly J. in Ennis v. Butterly [1996] 1 IR 426 where it was held that “agreements, the consideration for which is cohabitation are incapable of being enforced”. In that case Mr. Justice Kelly noted that prior to the enactment of the 1981 Family Law Act an agreement to marry between two persons who were already married to other people was void for public policy under the common law, and noted that the common law, if anything, had been reinforced by the guarantees for marriage and the family in the Constitution. Counsel on behalf of the applicant argued that the decision in Ennis v. Butterly was made without reference to the English case decided by Scott Baker J. in Shaw v. Fitzgerald (1992) 1 FLR 357 and quoted the judgment of Scott Baker J. at p. 360 of the report where he said as follows
      “Mr. Irvine, for the appellant, argues that subs. (1) to (3) of the 1970 Act draw a clear distinction between the capacity of two people to enter into an agreement to marry, which is not affected by this Act, and the right to enforce such contract, which parliament, he says, has recognised. Although such an agreement is not enforceable, its existence may cause the parties to alter their property rights. This is clear from subs. (2) and (3). Section 17 of the Married Women’s Property Act, 1882 provides a special procedure for resolving property disputes between husband and wife. The 1970 Act extended that Act so as to cover persons who had been engaged. It seems to me wholly artificial to interpret s. 2(2) so as to prevent those couples whose agreement to marry was unenforceable at common law from utilising its provisions, whilst at the same time permitting its use by those whose agreement is unenforceable by statute. I can see that there may be strong policy reasons why an agreement to marry should not have effect as a contract giving rise to legal rights, and that no action should lie for breach of it; but it seems to me that this is so whether or not both of the parties to the agreement was married to someone else when the agreement was made. I draw a clear distinction between seeking a legal remedy for breach of such an agreement and utilising a summary procedure to resolve property disputes which have arisen as a consequence of it. Those disputes are not, in my judgment, tainted by any illegality which may have attached to the agreement. The 1970 Act, it seems to me recognises this.”
The minimisation of former public policy considerations by Baker J. in the Shaw v. Fitzgerald decision must be considered in the light given to them by Kelly J. in the Ennis v. Butterly decision having regard to the strong and subsisting guarantees for marriage and family in the Constitution – a legal feature which is notably absent from the English context.
However, if the provisions of Article 41.2 1° and 2° of the Constitution relate to the role of women in the home as mothers of children, whether marital or not, then it can be said that the highly principled statement of public policy in Article 41.1° and 3° is to be tempered by the more pragmatic and utilitarian considerations of Article 41.2.1° and 2°. I am inclined to the view that the Ennis v. Butterly decision is not decisive in relation to the issues in this case (although I do not purport to decide them). I am of the view that an argument can be made against the propositions which may be gleaned from Ennis v. Butterly on the following grounds
      1. The decision in Ennis v. Butterly was made without consideration of the arguments in Shaw v. Fitzgerald (the same apparently not having being opened to Kelly J.).
      2. The Ennis v. Butterly decision related primarily to the enforceability of a cohabitation agreement whereas the issue in this case relates to the claim for the regularisation of property arrangements made during the course of the activities of the applicant, as a mother of the respondent’s three non marital children.
      3. I can find no reason in law or public policy nor in constitutional provisions which may be advanced for the proposition that property or joint property arrangements may not be made to facilitate the nurturing of a non marital child by its mother.
      4. The constitutional principles regarding the guarantees for marriage and the marital family are to be tempered by the need to ensure that non marital children are nurtured without diminishing the guarantees for marriage and the marital family.
On the foregoing basis, I cannot find that - assuming the plaintiff’s claim to be factually established (as I must under the case law relating to an application of this kind) that the applicant’s case is far from frivolous or vexatious and ought not to be dismissed pursuant to Rule 28.
As regards the respondent’s application to have the applicant’s case dismissed on the grounds that it is an abuse of the process of a court pursuant to the inherent jurisdiction of the court, I rely on the judgment of the Supreme Court in the case of Supermacs Ireland Limited and Patrick McDonagh (Plaintiffs) and Katesan (Naas) Limited and Patrick Sweeney (Defendants) [2000] IEHC 17 and the judgment of Hardiman J. where he deals with the burden of proof on an applicant in such cases as follows:-
      “The position is aptly summarised in Lac Minerals v. Chevron Corporation [1995] 1 ILRM 161 as follows:-
      “The judge acceding to an application to dismiss must be confident that no matter what may arise on discovery or at the trial of the action the course of the action will be resolved in a manner fatal to the plaintiffs contention”.
While the respondent alleged that there was no engagement and no engagement ring, that the applicant was paid as a PAYE worker by him, that there were declarations of trust made by the applicant in respect of the properties and that the applicant’s claim was fraudulent, these assertions have to be judged in the light of the common case that the applicant is the mother of long years standing of his three non marital children, implying a course of dealing (to use a neutral term) which could well give rise to a conclusion on the facts such as may be alleged by the applicant. In my opinion the respondent does not clear the difficult burden of proof to establish a right to have a dismissal for abuse of process in the light of the common procreative history of the applicant and the respondent and the activities associated therewith. Accordingly, I dismiss the respondent’s application on the issues directed by the court.


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URL: http://www.bailii.org/ie/cases/IEHC/2007/H196.html