Supreme Court holds estoppel cannot alter marital status; respondent not barred from proving prior valid marriage.

[2004] IESC 21

THE SUPREME COURT

NO. 100/2003

Denham J.

Murray J.

McGuinness J.

Fennelly J.

McCracken J.

IN THE MATTER OF JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989,

IN THE MATTER OF THE FAMILY LAW ACT, 1995

AND

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947

BETWEEN/

C.K.

APPLICANT

AND

J.K.

RESPONDENT

AND

F.McG.

NOTICE PARTY

Judgment delivered on the 31st day of March, 2004 by Denham J.

1. A Question of Law

This is a consultative case stated from His Honour Judge Patrick McCartan, Judge of the Circuit Court assigned to the Dublin Circuit,

pursuant to s. 16 of the Courts of Justice Act, 1947 and Order 65 of the Rules of the Circuit Court 2001, on the application of C.K.,

the applicant, referring a question of law to the Supreme Court. The matter came before the Circuit Court on 22nd day of January,

2003 by way of a preliminary issue in proceedings brought by C.K., the applicant, seeking a decree of judicial separation with ancillary

reliefs. J.K., the respondent, has filed a defence and counterclaim in which he seeks a declaration of nullity due to incapacity on his

part because of his prior valid marriage to F.McG., the notice party.

2. Facts

The facts, as proved or admitted or agreed and as found by the Circuit Court, were as follows:

“(a) The respondent married for the first time on the 7th September, 1968 to F.McG. There was one child of the marriage who

was born on the 29th May, 1969. In or about 1972 the marriage having failed, the respondent moved to live in a flat in

Ranelagh. Ms. McG., a school teacher by profession in a provincial town does not appear to have looked to the respondent for

maintenance and to have survived by her own means after the parting.

(b) In 1979 the respondent met the applicant in Dublin for the first time and they started to date. Shortly after their meeting

the respondent moved to work in the same company as the applicant on the north side of the city. His work there involved him

being trained in the manufacture of … and for these purposes he was sent on training courses to the company’s parent outlet in

the State of Ohio in America.

(c) There, the respondent met socially with an attorney a certain Mr. James McCorkle who on learning of the respondent’s

status and desire to be divorced, assured him that he could secure such a divorce for him without any difficulty and despite the

absence of the necessary legal requirements of residency and other matters. Documents were prepared based on incorrect

information relating to an address of residence and time spent in Franklin County and the State of Ohio. The respondent

travelled to Ohio to attend the hearing of the application and the divorce was secured as easily as Mr. McCorkle promised.

(d) During all this time the applicant and the respondent were courting and working together. The notice party indicated at the

hearing that she had received notification of the lodging of the application for the divorce in Ohio in the month of November,

1981 and decided to ignore it as affairs with the respondent had long been settled. She then got notice in the month of March,

1982 of the making of the order for divorce and was amused by the reference to child support which she confidently and

correctly anticipated would amount to nothing in reality.

(e) The respondent took two training trips to Ohio, each lasting three to four weeks at most, both in 1981 in the months of May

and November, staying in each occasion in a local commercial hotel. He then returned in March, 1982 for the final hearing of the

application and the granting of the divorce.

(f) The question of marriage between the applicant and the respondent arose and the respondent was seeking a means of

clearing the way for the union. The applicant was not involved directly in the attempts by the respondent to clear the way for

their marriage. The applicant had sought the divorce document and on its reading it seemed to her that a judge of capable

authority, who had the attendance of the respondent in court and was satisfied of all legal requirements, had granted the

divorce sought.

(g) The couple proceeded to be married at the registry office in Dublin on the 25th March, 1983. The application to the registrar

in Dublin was on the basis that the respondent was a bachelor. The marriage was solemnised and no impediment or reservation

arose during the notice application or the marriage ceremony.

(h) Having married in March, 1983 the couple stayed together as husband and wife for close on seventeen years during which

time they had two daughters born on the 24th day of April, 1987 and the 13th day of April, 1991. A family home was purchased

in joint names at … in the county of Dublin and the parties continued to reside there with the two children pending the

determination of these proceedings.”

3. Consultative Case Stated

A written judgment was delivered by the Circuit Court on the 29th January, 2003. At paragraph 7 of the consultative case stated the

findings of the Circuit Court are set out as follows:

“I have found that in this case, given the particular facts of the case, justice can only be achieved by the use of estoppel

whereby the respondent would not be allowed challenge, at this remove, the validity of his original divorce. The particular facts

that apply include:

(a) The respondent’s original spouse, Ms. McG. was aware of the making of the application and did not object.

(b) The respondent’s original spouse, Ms. McG. was not adversely affected by the making of the order of divorce.

(c) The child of the respondent’s marriage to Ms. McG. is not adversely affected by the continued existence of the

divorce.

(d) If the respondent was to apply for the dissolution of his first marriage today he would be entitled to a divorce in this

jurisdiction without any difficulty. At the time of the granting of the Ohio divorce, such a remedy was not permitted in this

jurisdiction.

(e) The respondent has enjoyed the benefits and the status of being both the spouse of the applicant for seventeen

years and the father of two children of that marriage.

(f) The applicant and her two children would suffer significant diminution of status and reduction of financial rights should

the validity of her marriage be undermined.

(g) No collusion or complicity can be laid at the feet of the applicant in the application for a licence to marry the

respondent.”

He held:

“I believe that justice between the parties can only be achieved by prohibiting or estopping the respondent from attacking the

validity of his divorce and by definition the validity of his marriage to the applicant. However, given the law as stated, I accept

that the concept of estoppel as a remedy, well suited to offer a solution in this case, is a judge made and developed principle. I

believe it is preferable for the parties to this action that prior to a final determination of the case that the Supreme Court be

consulted on this issue.”

4. Question for the Supreme Court

The opinion of the Supreme Court is sought on the following question:-

“Whether I am entitled to hold in these proceedings as a matter of law, having regard to the findings of fact made by me, that

the respondent is estopped from denying that he is married to the applicant.”

5. Submissions

Mr. Gerard Durcan, S.C., counsel on behalf of the applicant, submitted that it is possible by using the doctrine of estoppel to bring

about a just result as between herself and the respondent while not altering the status of any other parties to this action. In asking

this court to adopt such an approach the applicant did not seek that the court should ignore the facts rather that the respondent,

because of his conduct, should be denied a specific remedy or defence which would normally flow from those facts. It was submitted

that to do otherwise is to ignore the fact that the respondent deceived the applicant, went through a solemn ceremony of marriage

with her, and lived with her as man and wife for seventeen years during which time they had two children. Counsel advanced the

submission that decrees of divorce, nullity and judicial separation were decrees in personam and that consequently estoppel could be

applied.

Mr. Gerard Hogan, S.C., on behalf of the respondent, submitted that the decision in Gaffney v. Gaffney [1975] I.R. 133 precludes the

operation of the doctrine of estoppel in relation to marital status. It was submitted that there were no compelling reasons why

Gaffney should be overruled. Further, that if it were overruled the operation of the doctrine of estoppel in this area would be fraught

with difficulty and enhance the potential for injustice and anomaly. It was also submitted that the respondent should not be estopped

from asserting and establishing the invalidity of the Ohio divorce which has the consequence that he is shown to be not validly

married to the applicant.

Ms. Mary O’Toole, S.C., counsel on behalf of the Attorney General, addressed the submissions on behalf of the applicant that decrees

of divorce, judicial separation and nullity are decrees in personam. Counsel submitted that such decrees are judgments in rem and

that thus there could be no personal estoppel, that decrees of divorce and nullity are directly related to status and that judicial

separation decrees are grounded on the marital status of the parties. Reference was made to Gaffney and it was submitted that the

court should continue to apply the law stated by Walsh J. Counsel adopted the submissions made on behalf of the respondent.

Counsel also stressed the public interest in having certainty in the law on marital status.

F.McG., the notice party was not legally represented at the hearing before this court. She informed the court that her financial

situation is such that she is not in a position to meet the cost incurred in a two day hearing in the Supreme Court. While both the

applicant and the respondent obtained free legal aid, she did not. The notice party was in court while this matter was at hearing and

she offered her cooperation. However, as a personal litigant, she made no submissions to the court.

6. Non Recognition of Ohio Divorce

It was accepted that the Ohio divorce would not be recognised in this State in 1982 or now. The consequence follows that the

purported ceremony of marriage in 1983 was also invalid. It is in these circumstances that the issues in this case stated arise,

specifically as to whether the respondent may be estopped by his own conduct from asserting the invalidity of the Ohio divorce.

7. Issues

There are several issues raised by the question posed for the court. The first issue is whether the question for the court raises

matters determined in Gaffney v. Gaffney [1975] I.R. 133. If it is decided that it does, then the next matter for consideration is

whether there should be a departure from Gaffney. Finally, the question for the court falls to be decided.

8. Estoppel and Marital Status

The first issue, then is whether the question for the court raises matters determined in Gaffney. That case arose in circumstances

where the plaintiff married her husband in 1940 in Ireland and lived in Ireland with her husband and children. In 1957 the plaintiff

petitioned the High Court in England for a decree of divorce, representing that she and her husband were domiciled in England. In

1959 the English High Court granted a decree dissolving the marriage. Subsequently the plaintiff improvidently surrendered certain

rights conferred on her by the English Court. The husband went through a ceremony of marriage with the defendant in 1959 and died

intestate in 1972. In 1973 the plaintiff claimed in the High Court in Ireland a declaration that she was the lawful wife of the husband

on the date of his death. The plaintiff adduced evidence to establish that she and her husband were domiciled in Ireland at the time

of the divorce proceedings, that she had never wanted a divorce and that she had acted under duress from her husband. The High

Court (Kenny J.) ordered the making of the declaration sought by the plaintiff. He held that only the court of domicile of the husband

and wife could have jurisdiction to dissolve their marriage, that the court could investigate the circumstances to see if the English

Court had jurisdiction, that the plaintiff and defendant were domiciled at all times in Ireland, accordingly the English Court had no

jurisdiction to grant the divorce, that the plaintiff was not estopped from denying the validity of the marriage, that the divorce had

been procured by fraud and duress. An appeal to the Supreme Court was disallowed. Walsh J. stated:

“The paramount issue in the present case is the status of the plaintiff and her husband at the date of his death. The plaintiff

was either his wife or she was not. Apart from other legal incidents in this country, certain constitutional rights may accrue to a

woman by virtue of being a wife which would not be available to her if she were not. The matter cannot, therefore, by any rules

of evidence be left in a position of doubt nor could the Courts countenance a doctrine of estoppel, if such existed, which had

the effect that a person would be estopped from saying that he or she is the husband or wife, as the case may be, of another

party when in law the person making the claim has that status. In law it would have been quite open to the husband to have

denied at any time after his marriage to the defendant that he was in law her husband. If during the currency of that marriage

the plaintiff had claimed that she was his wife, she might have been met with the answer which is being offered on behalf of

the defendant in this case – that the plaintiff was estopped from doing so because she had submitted to a jurisdiction which

purported to change that status. Consent cannot confer jurisdiction to dissolve a marriage where that jurisdiction does not

already exist. The evidence which the plaintiff sought to offer in the present case was directed towards showing that the court

in question did not have jurisdiction. In my view, the learned trial judge was quite correct in admitting that evidence.”

Henchy J. held, at page 154:

“I fail to see why, although the decree seems good on its face, evidence should not be received to show that its façade

conceals a lack of jurisdiction no less detrimental to its validity than if it had been written into the order. To hold otherwise

would be to close one’s eyes to the available truth and to give effect instead to a spurious divorce which the English court was

deluded by sworn misrepresentations into making.

The position is not affected by the fact that it is a foreign decree. The comity of courts under private international law does

not require or permit recognition of decisions given, intentionally or unintentionally, in disregard of jurisdictional competence.

Counsel for the defendant is unable to point to any authority showing that a party to a foreign divorce which was given without

jurisdiction was debarred from giving evidence pointing out the want of jurisdiction. On the contrary, a number of authorities

cited in the High Court (or cases referred to in those authorities) exemplify or support the reception of such evidence: see, for

example, Bonaparte v. Bonaparte [1892] p. 402, Shaw v. Gould (1868) L.R. 3 H.L. 55, Middleton v. Middleton [1996] 2 W.L.R.

512. I am satisfied that there can be no estoppel by record when the record arose in proceedings, domestic or foreign, upon

which the court in question had no jurisdiction to adjudicate.”

At page 159 Griffin J. held:

“In the present case, the English court had no jurisdiction over the plaintiff and the husband and, therefore, the Courts in

Ireland cannot treat the decree of divorce a vinculo as other than invalid. The decree in the present case was obtained by

duress and by fraud going to the point of jurisdiction. The learned trial judge has held that the duress and fraud were those of

the husband, but even where a petitioner has obtained a decree in a foreign court which had no jurisdiction to pronounce it, by

deceiving the court into believing it had jurisdiction, the court will treat it as invalid: see Bonaparte v. Bonaparte [1892] p. 402,

Middleton v. Middleton [1996] 2 W.L.R. 512.

In the result, as the decree of divorce a vinculo was granted without jurisdiction, our Courts will and must treat the decree as

invalid and the marriage of the plaintiff and her husband as subsisting at the date of his death …”

Thus while Henchy J. and Griffin J. made a different analysis they arrived at the same decision as Walsh J. O’Higgins C.J. agreed with

Walsh J. and Parke J. agreed with all the judgments delivered. Consequently, the court decided to disallow the appeal, holding that

courts in Ireland do not recognise a decree of dissolution of marriage granted in divorce proceedings in a foreign jurisdiction when the

parties to the marriage were not domiciled in that foreign jurisdiction at that time. Further, that the evidence adduced on behalf of

the plaintiff was admissible to establish that the English Court lacked jurisdiction and that the plaintiff was not estopped from denying

the validity of the decree of divorce.

Since Gaffney the prohibition on the use of estoppel in cases where marital status is relevant has been a kernel concept of Irish Law.

Conversely, evidence adduced (on behalf of the respondent) is admissible to establish that the foreign court lacked jurisdiction and

that a party (the respondent) is not estopped from denying the validity of the decree of that court, has been accepted in many

cases and is well established precedent in this jurisdiction.

Thus in R.B. v. A.S. [2002] 2 I.R. 428 at page 456 Keane C.J. stated:

“While it was suggested that the petitioner, by his conduct at the time in encouraging and facilitating the divorce, was

estopped from contesting the validity of his marriage, I do not think that that argument was seriously pressed during the oral

submissions and, in my view, correctly, so. It is clear from the judgment of Walsh J. in this court in Gaffney v. Gaffney [1975]

I.R. 133 that the doctrine of estoppel cannot operate so as to change a person’s status where that status, as a matter of law,

has not been changed.”

In P.K. (otherwise C.) v. T.K. [2002] 2 I.R. 186 Fennelly J. noted that the dictum of Walsh J. in Gaffney had not been challenged in

that case. He stated at p. 193:

“The evidence to which objection was taken in that case was evidence which the plaintiff had given to show that she had been

coerced by threats into presenting a divorce petition in England, a petition which on its face asserted that the plaintiff was

domiciled in England. It would have been egregious to exclude it. The dictum of Walsh J. was recently approved in the judgment

of Keane C.J. in R.B. v. A.S. (Nullity: Domicile) [2002] 2 I.R. 428. The matter was not, it appears, fully argued in that case.

Nonetheless, the principle appears to have been broadly accepted in many jurisdictions though with occasional dissent For my

own part, I would not wish categorically to exclude the possibility that a person who had acted so in relation to a decree of

divorce granted by a foreign jurisdiction might be precluded from questioning its validity. However, the issue has not been

argued on this appeal ”

Thus, arising from Gaffney and subsequent decisions of this court, the law is well established that estoppel may not be used, to

change a person’s status when that has not occurred, to prevent a party demonstrating that a foreign divorce decree was given

without jurisdiction. Therefore, unless Gaffney is overruled by this court it is a governing authority on this issue.

9. Marriage of Parties

Submissions were made that the use of estoppel sought was not so as to affect status but was inter partes, in personam, only. I

cannot accept such submission. I am satisfied that at the heart of this case is the issue of marriage and the legal status of the

parties. If that approach is not taken then anomalies and a de facto fictitious status will enter an already complex area of the law.

Thus I am satisfied that the core issue is the status of the parties and thus the applicability of the decision in Gaffney.

10. Merits

It is not a question of seeking the merits of the case, if it were the respondent appears to have little or none. At issue is a question

of law and the case falls to be decided on legal principles. The issue is grounded on constitutional and legal principles on marriage and

the consequent status of the parties. Therefore, the precedent set in Gaffney is of central importance.

11. Stare Decisis

Thus the next issue for consideration is whether there should be a departure from Gaffney. The law on such departures by this court

is well established.

11.1. Submissions

The parties made submissions on the issue of stare decisis. In essence, the applicant submits for a just result by the use of estoppel.

It was argued that the conduct of the respondent to the applicant has been such that it would be inequitable and contrary to justice

to allow him to rely upon such denial. Counsel on behalf of the applicant submitted that her case is not that the estoppel confers on

her the status of a spouse of the respondent but rather he is precluded in these proceedings from saying that she does not enjoy

such status. It was submitted that there have been enormous legal changes in our society since Gaffney was decided in 1975. It was

submitted that because there was no divorce in Ireland until 1996 a considerable number of people applied for divorces in foreign

jurisdictions when they had little or no link with the jurisdiction in question, and that they then entered new marriages. As a

consequence, anomalous and difficult cases emerge where litigants would attempt to gain an unfair advantage. It was queried

whether in the changed social and legal environment since 1975 it is right that the law should give an appropriate remedy to defeat

such efforts. Otherwise, it was submitted, persons would be allowed to discard with impunity obligations which they have undertaken

leaving the party in the second union to be a charge on the State should he or she be impecunious.

Reference was made also to s. 29 of the Family Law Act, 1995 and McG. v. D.W. (No.2) [2000] 4 I.R. 1. It was submitted, that as a

consequence, a declaration may be binding on some but not on all, on the parties but not the world. Consequently, it was submitted,

the principle is not unlike the concept of estoppel in these circumstances as underpinned in the changed circumstances.

In submissions reference was made to the law in other countries. Reliance was based on Downton v. Royal Trust Company et al

(1972) 34 D.L.R. (3d) 403 where Laskin J., for the court, concluded (of a similar principle) at p. 412:-

“My canvass of typical cases which have reached Canadian Courts indicates that the only claim to consistency that they exhibit is

the application of a preclusion doctrine against a spouse who, having obtained a decree of divorce or nullity from a foreign Court

incompetent to give it, seeks thereafter to assert that incompetence in order to gain a pecuniary advantage against his or her spouse

or the estate of the spouse. The doctrine has an ethical basis: a refusal to permit a person to insist, to his or her pecuniary

advantage, on a relationship which that person has previously deliberately sought to terminate.”

On behalf of the applicant it was submitted that it is possible by using the doctrine of estoppel to bring about a just result as

between the applicant and respondent while not altering the status of any of the parties by reason of such estoppel. Counsel

submitted that the respondent, because of his conduct, should be denied a specific remedy or defence which would normally flow

from the facts. It was submitted that to do otherwise is to ignore part of the relevant facts in that the respondent deceived the

applicant, went through a purported solemn ceremony of marriage with her, and lived with her as man and wife for seventeen years

during which they had two children.

Counsel on behalf of the respondent relied on Gaffney, submitting that Gaffney precludes the operation of the doctrine of estoppel in

relation to marital status. It was submitted that, applying the principles in Mogul of Ireland v. Tipperary (N.R.) County Council [1976]

I.R. 260, there are no compelling reasons why Gaffney should be overruled. Consequently, it was argued, the respondent cannot be

estopped from asserting and establishing the invalidity of the Ohio divorce with the result that he is not validly married to the

applicant.

11.2. Law – Precedent

The determination of the law by the Supreme Court is final, except where, for the most compelling reasons, the court will depart from

an earlier decision. This was described in the State (Quinn) v. Ryan [1965] I.R. 70, where at p. 127 Walsh J. stated:

“This is not to say, that the Court would depart from an earlier decision for any but the most compelling reasons. The

advantages of stare decisis are many and obvious so long as it is remembered that it is a policy and not a binding, unalterable

rule.”

In Attorney General v. Ryans Car Hire Limited [1965] I.R. 642 at p. 653 Kingsmill Moore J. said:

“The law which we have taken over is based on the following of precedents and there can be no question of abandoning the

principle of following precedent as the normal, indeed almost universal, procedure. To do so would be to introduce into our law

an intolerable uncertainty. But where the Supreme Court is of the opinion that there is a compelling reason why it should not

follow an earlier decision of its own, or of the Courts of ultimate jurisdiction which preceded it, where it appears to be clearly

wrong, is it to be bound to perpetuate the error?

In my opinion the rigid rule of stare decisis must in a Court of ultimate resort give place to a more elastic formula. Where such a Court

is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional

cases.”

In Mogul of Ireland v. Tipperary (N.R.) County Council [1976] I.R. 260 the Supreme Court was asked to overrule a line of previous

decisions. The court stated, O’Higgins C.J., at page 269:-

“When a court does pronounce on the meaning of a statue and thereby defines the law, a court of review ought not to

pronounce this definition incorrect merely because a contrary view as to the statute’s meaning is also possible.”

At p. 272 Henchy J. said:-

“Therefore, the primary consideration is whether this Court is clearly of opinion that the decision in Smith’s Case [1949] I.R. 322

was erroneous. If the point was res integra, one might reach the opposite conclusion, but I do not think it is possible to assert

a clear opinion that Smith’s Case was wrongly decided A decision of the full Supreme Court (be it the pre 1961 or the post 1961

Court), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely

because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or

affirmation, and the desirability of achieving certainty, stability and predictability should yield to the demands of justice.

However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the latter court must, at the

least, be clearly of opinion that the earlier decision was erroneous

Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to

overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its

correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases

the maximum communis error facit jus applies ”

These principles are well established and have been applied in many decisions. For example, in Re Illegal Immigrants (Trafficking) Bill

[2000] 2 I.R. 360 Keane C.J. stated that no “relevant argument or authority was overlooked” in the earlier judgment and there was no

“compelling reasons which would permit the court to depart from those decisions.”

This court will only depart from a previous decision on law where it is clear that an earlier decision was erroneous and that there are

compelling reasons (which would include the absence of reference to an argument or legal authority but not exclude other factors)

not to follow the precedent. It is a principle to be applied in exceptional cases. Thus, the question is whether this is such a case.

There is a heavy burden on the applicant to meet these criteria.

11.3. Potential Effect of Use of Estoppel

The possible effect of the use of an estoppel is highlighted by the potential order of the Circuit Court should estoppel be used. First,

there would be a decree based on judicial separation (which is a decree grounded on the parties being spouses) which would be

based on the use of estoppel. Yet, on the counterclaim, there would be a decree of nullity, which is grounded on the parties not

being spouses. Both these orders would relate to the same “marriage.” Thus the one order would have separate portions effectively

recognising a different status for the parties. The potential for anomaly arising from the use of estoppel in a situation grounded on

status is clear from the consideration of such a single possible order in this case.

11.4. Legal Fiction

The facts and status of a person, especially a constitutional status with consequential rights and duties, should not be ignored by a

court. A court order should not be based on a legal fiction. If such an approach were taken it would cause more anomalies and

difficulties. I would be very cautious about an approach that essentially supported a legal fiction. Legal fictions have caused many

difficulties in the past in legal systems.

There has been a long history of legal fictions in the law. They had a place in the early development of law and its growth. In Ancient

Law, 10th Edit., at p. 23 Sir Henry Maine wrote of legal fictions:-

“I employ the word ‘fiction’ in a sense considerably wider than that in which English lawyers are accustomed to use it, and with

a meaning more extensive than that which belonged to the Roman ‘fictiones’. Fictio, in old Roman law, is properly a term of

pleading, and signifies a false averment on the part of the plaintiff which the defendant was not allowed to traverse; such, for

example, as an averment that the plaintiff was a Roman citizen, when in truth he was a foreigner. The object of these ‘fictiones’

was, of course, to give jurisdiction, and they therefore strongly resembled the allegations in the writs of the English Queen’s

Bench and Exchequer, by which those courts contrived to usurp the jurisdiction of the Common Pleas:- the allegation that the

defendant was in custody of the king’s marshal, or that the plaintiff was the king’s debtor, and could not pay his debt by reason

of the defendant’s default. But now I employ the expressions ‘Legal Fiction’ to signify any assumption which conceals, or affects

to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified.

The words, therefore, include the instances of fictions which I have cited from the English and Roman Law, but they embrace

much more, for I should speak both of the English case-law and of the Roman Responsa Prudentium as resting on fictions. Both

these examples will be examined presently. The fact is in both cases that the law has been wholly changed; the fiction is that it

remains what it always was. It is not difficult to understand why fictions in all their forms are particularly congenial to the

infancy of society. They satisfy the desire for improvement, which is not quite wanting, at the same time that they do not

offend the superstitious disrelish for change which is always present. At a particular stage of social progress they are invaluable

expedients for overcoming the rigidity of law …We must, therefore, not suffer ourselves to be affected by the ridicule which

Bentham pours on legal fictions wherever he meets them. To revile them as merely fraudulent is to betray ignorance of their

peculiar office in the historical development of law. But at the same time it would be equally foolish to agree with those

theorists who, discerning that fictions have had their uses, argue that they ought to be stereotyped in our system. … There

can be no doubt of the general truth that it is unworthy of us to effect an admittedly beneficial object by so rude a device as a

legal fiction. I cannot admit any anomaly to be innocent, which makes the law either more difficult to understand or harder to

arrange in harmonious order.”

I am satisfied that in relation to such an important area as status and the constitutional family it is inappropriate to consider using a

rule which, by analogy, creates or uses a legal fiction. This is an inappropriate device to be used in a modern constitution. The rule of

law is not supported by such a subterfuge.

11.5. No Compelling Reasons

The next matter for consideration is whether there should be a departure from Gaffney. I have considered carefully the reasons

submitted as to why there should be a departure from Gaffney. I am satisfied that there should not. I find that the applicant has

provided no compelling reasons. I am not satisfied that the submissions as to the court decision being inter partes only, or for a

particular action, or in personam, are correct or meet the onus. I am satisfied that submissions should not succeed either to

distinguish Gaffney or to cause the court to depart from Gaffney. Such an alteration, permitting the use of estoppel in actions relating

to marital status, would give rise to anomalies and problems. It would mean that people would be treated as married for some

purposes and not for others. I am satisfied that when the basic issue is, or the case rests on the issue of, marriage, estoppel may not

be used to prevent the legal status of a person being recognised and relied upon.

To preclude the respondent from relying on the facts of the case, to apply estoppel, would mean that for the purpose of this case

the applicant would enjoy a status to which she is not entitled in law. While it is clear that there have been enormous legal changes

since 1975, the core principle in Gaffney remains the same. Indeed, if as a consequence of the enormous legal changes, there are

many anomalous and difficult cases where litigants might seek to gain an unfair advantage, there is no merit in making the situation

more complex and potentially more problematical by using estoppel in some circumstance and not others. It would have the effect of

introducing an element of legal fiction into this already complex field.

As to the issue of obligations – and the submitted discarding of obligations with impunity – that is a serious matter but not to be

resolved in this way. There are methods other than based on a valid marriage to obtain at least a measure of relief. Finally, I would

distinguish the situation which arose in McG. v. W (No. 2) [2000] 4 I.R. 1 from this case. It is not relevant, it relates to a specific

statutory provision and is not helpful in analysing the fundamental issues in this case.

11.6. Other Jurisdictions

The jurisprudence from other jurisdictions was opened in submissions and it was argued that it should be persuasive to change Irish

law. The terms describing the principle vary from jurisdiction to jurisdiction. Reference was made, for example, to G. v. M. [1881-5] All

E.R. Rep. 397 where the Earl of Selborne, L.C., said at p. 399:-

“My own belief is, that to whatever criticism the phraseology of judges in those cases may be open, (and I must say that the

adoption of that particular phrase ‘sincerity’ seems, as counsel said, to suggest a psychological question rather than one of law or

fact, diving into the motives of a person’s mind rather than trying whether a cause of action exists or not), I think I can perceive that

the real basis of reasoning which underlines that phraseology is this, and nothing more than this, that there may be conduct on the

part of the person seeking this remedy which ought to estop that person from having it; as, for instance, any act from which the

inference ought to be drawn that during the antecedent time the party has, with a knowledge of the facts and of the law,

approbated the marriage which he or she afterwards seeks to get rid of, or has taken advantages and derived benefits from the

matrimonial relation which it would be unfair and inequitable to permit him or her, after having received them, to treat as if no such

relation had ever existed.

That explanation can be referred to known principles of equitable, and, I may say of general, jurisprudence. The circumstances which

may justify it are various, and in cases of this kind, many sorts of conduct might exist - taking pecuniary benefits for example, living

for a long time together in the same house or family with the status and character of husband and wife, after knowledge of

everything which it is material to know. I do not at all mean to say that there may not be other circumstances which would produce

the same effect; but it appears to me that, in order to justify any such doctrine as that which has been insisted upon at the Bar,

there must be a foundation of substantial justice, depending upon the acts and conduct of the party sought to be barred. Further

than that, I do not think it necessary for the purpose of this case to go. Of course, when facts are in dispute, motive may be all-

important; but that is not the case here.

If that be a true explanation of the doctrine, so far as it can be considered law in England (for into Scotland it never seems to have

found its way at all), under the name of ‘sincerity,’ or under any name distinguishing it from ‘approbate’ and ‘reprobate’ and the

general principles of equity, then I say that if this case had to be tried by that doctrine, the circumstances would show that it was

inapplicable.”

The phrase “no estoppel binds the court” was established as a fundamental principle in the divorce courts of England and Wales. It

was so stated in Harriman v. Harriman [1900-10] All E.R. Rep. 85; [1909] p. 123, based on a construction of statutory law. The

statutory sections were re-enacted in English statutes from the nineteenth century and during the twentieth and applied to divorce

and judicial separation proceedings. In essence, the English jurisprudence grew on the construction of English statutes.

Reference was made to the Canadian case Downton v. The Royal Trust Company et al 34 D.L.R. (3d) 403. Laskin J. giving the

judgment of the court reviewed the position in Canada holding:

“My canvass of typical cases which have reached Canadian Courts indicates that the only claim to consistency that they exhibit is

the application of a preclusion doctrine against a spouse who, having obtained a decree of divorce or nullity from a foreign Court

incompetent to give it, seeks thereafter to assert that incompetence in order to gain a pecuniary advantage against his or her spouse

or the estate of the spouse. The doctrine has an ethical basis: a refusal to permit a person to insist, to his or her pecuniary

advantage, on a relationship which that person has previously deliberately sought to terminate. The ethical basis is lost, however,

where there has been both invocation and submission to the foreign jurisdiction by the respective spouses; and if there is to be a

modification or rejection of the preclusion doctrine in respect of one or both of the spouses, other considerations must be brought

into account; there may be, for example, an alleviating explanation for the submission to the jurisdiction of an incompetent foreign

Court. So too, where third parties are involved in a case where a spouse who has obtained an invalid foreign divorce or decree of

nullity seeks to rely on its invalidity.

Any ethical factors underlying the preclusion doctrine are submerged in overriding consideration when an invalid foreign decree is

pressed in a strictly matrimonial cause in which divorce or nullity is sought. Marital status per se cannot be altered or perpetuated by

a preclusion doctrine, and hence, as in Schwebel v. Schwebel (1970), 10 D.L.R. (3d) 742, [1970] 2 O.R. 354, 2 R.F.L. 45 (Ont.), a

spouse should not be denied the right to seek a divorce before a competent Court merely because that spouse earlier invoked the

jurisdiction of an incompetent foreign Court.

This result appears to me to be consonant with a public policy which today more than before recognises that parties whose marriage

has failed should be allowed to dissolve it. I see no inconsistency between this position and the application of a preclusion doctrine

against a spouse who has ignored the jurisdictional requirements for a valid dissolution and who would none the less insist to his or

her own pecuniary advantage that the law be applied strictly in his or her favour in disregard of an attempted dissolution which is

invalid.’

He then reviewed the American Law Institute, Restatement of the Law and the Comment on the Rule, quoting it:

‘The rule’s scope of application varies from state to state and, even within the confines of a single state, is often clouded with

uncertainty. In general, it may be said that a person who obtains a divorce and then remarries will not be permitted to attack the

validity of the divorce in order to free himself from his obligations to his second spouse or in order to claim an inheritance from the

estate of the first spouse. On the other hand, if both parties to a divorce attack its validity in a subsequent action, neither should be

estopped from making such an attack, since neither is placing reliance upon the validity of the divorce

A spouse who has accepted benefits under the divorce will usually be held estopped to attack it. So an invalid ex parte divorce

obtained by a husband will be held immune from attack by a wife who has remarried. Usually, such a divorce will also be held immune

from attack by a wife who has accepted alimony under the original decree or who has waited an unreasonable long time before

attacking the divorce, particularly if the husband has remarried in the meantime.

The cases are divided on the question whether third has at times persons may be estopped from attacking a divorce decree. Such an

estoppel been imposed upon one who persuades a woman to seek a divorce in order that he may marry her, particularly if he finances

the divorce and provides her a lawyer. Likewise, a person may be estopped from attacking a divorce if his claim is derived from a

person who would have been estopped.’

He then held:

In the present case, I am satisfied that the lawful wife submitted to the foreign Court as she did to protect her existing benefits

which were given as a result of her separation from her husband in Newfoundland. Her submission was, accordingly, a special one and

could have no effect against her in Newfoundland in enforcing the separation terms, since she would not have to rely there upon the

foreign decree in order to enforce them. This is not a case where the appellant’s maintenance benefits rested on the foreign divorce

decree alone and where she had taken those benefits until the deceased’s death, and then sought to assert that she was the lawful

wife in order to gain additional benefits.

There is no express finding that the maintenance provisions of the separation agreement continued after the husband’s death. The

trial judge appears to have regarded this obligation as terminating on death, although it was incorporated in the foreign divorce

decree, which in his opinion could not alter the wife’s marital status. At any rate, I take his award of $20,000 to the wife out of the

deceased’s estate as being the only benefit to which she should be entitled and, in that respect, superseding any obligation under the

separation agreement, save as to arrears up to the time of the husband’s death.

The present case stands, therefore, as one where the wife’s formal submission to the foreign Court was not followed by any act or

conduct in reliance upon it nor was there any acceptance by her of benefits under it. The Court of Appeal stated in its reasons that

she ‘in subsequent years, relying on that decree, held herself out to have been, and must be presumed to have wished to be

considered as having been divorced from, and therefore no longer the wife of Mr. Downton.’ Counsel for the respondent was unable to

support this assertion before this Court. There was certainly no affirmative evidence to support it; there is only the fact of a previous

separation and the fact that Dr. Downton brought a second wife back with him after the foreign divorce. I am unable to agree,

therefore, that the appellant is precluded from denying the validity of the foreign divorce decree in Newfoundland and from insisting

on her status as the lawful window of the deceased.”

Consequently, on this analysis, it appears that the applicability of the preclusion doctrine may depend upon the circumstances of the

case, on ethical considerations. Yet it should have no operation when the issue of an invalid foreign divorce arises in marital cases of

divorce or nullity. There is an echo of Gaffney in Laskin J.’s reference to marital status per se.

Having considered the submissions on the law in other jurisdictions I am not persuaded that the settled law of this jurisdiction,

grounded as it is to the Constitution of Ireland, 1937, may be advanced by cases from other jurisdictions.

11.7. Decision on Stare Decisis

Applying the legal principles, I am satisfied that no key arguments were overlooked in Gaffney; it has not been established to be

clearly wrong; it has not been established that there was any error; it has not been established that there are any compelling reasons

as to why Gaffney should not be followed. Consequently, I am satisfied that the determination in Gaffney should not be abandoned or

departed from.

12. Decision

Finally, then the question posed to the court falls to be decided. At the core of this case is the issue of status. The status of the

parties gives rise to constitutional, as well as legal, rights. The status of a person is important for the individual, for the families

involved and the community. A person and their status is a building block in the fundamental unit group of our society, under the

Constitution, the family.

All the reliefs sought by the applicant are predicated on the fact that she is a spouse. Yet under the law and the Constitution she is

not. I am satisfied the applicant cannot evade the reality of the situation by her legal argument such as submitting that the decision

is inter partes only, that it is in personam, or that the respondent be estopped from proving all the circumstances of the case. The

law is as stated in Gaffney and precludes the operation of the doctrine of estoppel in relation to marital status. The doctrine of

estoppel cannot operate to change a person’s status in law.

The law on estoppel and marital status was stated by Walsh J. in Gaffney and has been followed and accepted in subsequent cases.

The principles he enunciated are applicable to this case. Applying the principles of law stated by Walsh J. in Gaffney, and repeated in

case law subsequently, the respondent is not estopped from bringing forth evidence as to his application for, and the status of, his

divorce in Ohio. Therefore, I would answer the case stated from the Circuit Court in the negative.

13. Conclusion

This case raised issues determined in Gaffney and subsequent cases. No compelling reasons have been given for a departure from

Gaffney. Consequently the principles set out in Gaffney are applicable to this case: the doctrine of estoppel may not be used to

change a person’s status when that has not occurred.

The opinion of the Supreme Court was sought on the question:

“Whether I am entitled to hold in these proceedings as a matter of law, having regard to the findings of fact made by me, that the

respondent is estopped from denying that he is married to the applicant.”

I am satisfied that the Circuit Court is not entitled to hold in these proceedings as a matter of law, on the findings of fact, that the

respondent is estopped from denying that he is married to the applicant. Thus I would answer the question posed in the negative.