THE first divorce since the passing of the constitutional amendment was granted yesterday by the High Court. Giving the historic judgment, which took under 20 minutes to deliver, Mr Justice Barron said that he was satisfied that the provisions of the Constitution had been complied with.
The man who made the divorce application, and who cannot be named for legal reasons, lives in the Dublin area. He is believed to be in his late 60s and to be terminally ill.
The application was made under the article of the Constitution amended by the divorce referendum because the Family Law (Divorce) Act 1996 which resulted from it has not yet been enforced.
The case was heard in camera last Wednesday. The judgment yesterday was also given in private, but copies were afterwards distributed to journalists waiting outside Court 5 of the Four Courts. Any facts leading to possible identification of the couple were deleted from the judgment.
Yesterday the judge said the couple lived close to each other without bitterness on either side. There were three adult children from the marriage. The eldest child was a son who was married with two daughters. The two younger children were daughters and were unmarried. The man now lived with another woman by whom he had a daughter.
The man sought a decree of dissolution of marriage. The proceedings were brought pursuant to the provisions of Article 41.3.2 of the Constitution notwithstanding that the Family Law (Divorce) Act 1996 was not yet in force. The first question which had to be determined was whether that provision created a jurisdiction and, if so, whether it was exercisable by the court.
Mr Justice Barron said he had had the benefit of written submissions on behalf of the man and also very careful oral submissions in relation to both these matters. It was submitted that there were two instances in the Act itself which indicated that it intended to regulate a jurisdiction conferred by the Constitution.
First, the long title to the Act commenced: "An Act, to make provision for the exercise by the courts of the jurisdiction conferred by the Constitution to grant decrees of divorce ... and secondly, the power to grant a decree of dissolution contained in Section 5 of the Act was stated to be in exercise of the jurisdiction conferred by Article 41.3.2.
Mr Justice Barron said that from these two references and from the terms of the relevant provision of the Constitution itself, it seemed clear that a jurisdiction to grant a decree of dissolution of marriage derived from the Constitution and not from the statute.
This court had under the Constitution, Article 34.3.1, a full original jurisdiction in and power to determine all matters and questions, whether of law or fact, civil or criminal. Whether this jurisdiction could be limited had been considered in cases where legislation had conferred jurisdiction exclusively on courts of limited jurisdiction.
The judge said he was satisfied having regard to precedents referred to that the High Court was for the purposes of this provision of the Constitution a court designated by, law and the jurisdiction granted by those provisions might be exercised by the court.
There was nothing in that provision which limited the powers of the court to exercise the jurisdiction created, nor was there any statutory provision in force based upon any other provisions of the Constitution, which took away such jurisdiction.
The constitutional provision set out the matters upon which the court must be satisfied.
Mr Justice, Barron said evidence had been given by both husband and wife, the former being taken in the main on commission: From this evidence, he was satisfied the parties were married and following that, they lived in several countries until they settled in the State. They then separated, the husband going to live with another woman by whom he had a daughter.
The parties to the proceedings had lived apart continuously since then up to the date of the issue of the proceedings.
"The parties live close to each other without bitterness on either side. The wife has come to terms with the situation that her feelings towards her husband are not reciprocated. Nevertheless there is no reasonable prospect of a reconciliation between them."
The elder daughter of the parties lived with her mother. The younger daughter lived on her own in accommodation provided by her mother. The son of the marriage rented accommodation from his mother in one of the properties to be transferred into her name purchased in equal shares by the parties. The man carried on a professional practice from part of the same premises.
The children were employed. There was no evidence that any were in need or had any special requirements, for their welfare.
"The relationship between the plaintiff and his son is good. Unfortunately, his daughters resented his treatment of their mother and have not spoken, to him since he ceased to live with her," he said.
The family assets comprised three properties, two in the State and one abroad. The latter was bought entirely by funds the property of the wife, but put into joint names. The two properties in the State were put into the sole name of the husband, one having been bought entirely with the wife's own monies and the other by equal contributions from each spouse.
The husband and wife each had substantial assets in trust funds those of the wife being more than double those of the husband.
The judge said it was proposed to transfer all three properties into the name of and beneficial ownership of the wife. The value of these properties would add approximately 75 per cent to the current value of the wife's trust funds.
The value of that portion of such property as, was purchased with the husband's monies would if aggregated with the value of his other assets amount to approximately 25 per cent of his total assets. The husband proposed to transfer approximately one third of his remaining assets equally between his three children.
Mr Justice Barron said he was satisfied that these provisions were proper in the overall circumstances of the family.
It was to be noted that the provisions of clause 3 of article 41.3.2 of the Constitution differed from the corresponding statutory provisions. The former provided that "such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law".
"The latter provided for such provision as the court considered proper having regard to the circumstances existing or which would be made for the spouses, and any dependent members of the family. Since the jurisdiction invoked was that contained in the Constitution and not that amplified by the Act, it was necessary for the court to consider the position of the children.
The judge said that while he did not purport to determine that non dependent children should necessarily have provisions made for them, he was satisfied that in the particular circumstances of the present case it was proper that certainly the two daughters of the marriage should have provisions made for them in the interests of the family as a whole.
There were no further conditions prescribed by law currently in force which must be complied with as a precondition to the exercise of this constitutional jurisdiction.
"While the wife does not wish to be divorced from her husband, she has made no effort to oppose these proceedings other than to ensure that proper provision should be made in accordance with Article 41.3.2."
This gave rise to consideration as to whether this might amount to collusion. He was satisfied, he said, that there had been none and that the evidence before the court, had been truthfully given.
The legal teams were for the man, Mr Gerard Durcan SC, Ms Ann Kelly, counsel, and Lavery Kirby & Co, solicitors for the woman, Ms Inge Clissman SC, Ms, Sabrina O'Toole, counsel, and F.H. O'Reilly & Co, solicitors.