High Court allows judicial separation where one year of separation is met despite post-triggering cohabitation under 1989 Act s.4(2).

Neutral Citation Number: [2009] IEHC 579

THE HIGH COURT

FAMILY LAW

2008 41 M

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

ACT 1995

BETWEEN

R. S.

APPLICANT

AND

P. S.

RESPONDENT

PRELIMINARY ISSUE (S)

JUDGMENT of Mr. Justice Abbott delivered on the 27th day of July, 2009

1. The applicant (wife) was married to the respondent (husband) on the 25th May, 1996, in Ireland within this jurisdiction. There are

six children of the marriage, the eldest born on the 25th March, 1997, and the youngest on the 16th April, 2005. By special summons

dated the 4th June, 2008, the wife sought judicial separation in these proceedings from the husband. The jurisdiction of this Court

and the entitlement of the wife to a judicial separation has been contested by the husband.

Background of the Marriage

2. The wife is 46 and the husband is 60 years of age. Both are English citizens. The parties met in 1990. At that time the husband

had become a UK tax exile and had established a business in the Cayman Islands. When the parties married in 1996, they resided in

Ireland moving their home three times to its present location. However, they remained an extraordinarily mobile family, as they moved

whenever mother and children were fit to travel, generally, between their home in Ireland, a home in the Cayman Islands and, more or

less the same summer holiday hotel in France. The exact details of this triangular movement will be examined in some detail in this

judgment as it is pertinent to the issues arising.

Litigation History to Date

3. An interesting feature of the proceedings is that whereas the special summons issued on the 8th May, 2008, and was served a

short time thereafter, the wife did not swear a grounding affidavit until the 7th October, 2008, - an affidavit of means having been

sworn together with an affidavit of welfare on the 2nd October, 2008. A conditional appearance was entered by the husband on the

9th October, 2008. The wife served a notice of motion returnable for the 23rd January, 2009, seeking, what, in approximate terms,

may be described as a Maerva injunction in relation to the husband’s property, and an order deeming the appearance entered by the

husband on the 9th October, 2008, to be a conditional appearance, or further or alternatively, an order directing the husband to

enter an unconditional appearance to the within proceedings, together with miscellaneous relief, and, (perhaps a little over

ambitiously) an order permitting the wife to prosecute the proceedings, as though they were undefended. The husband served a

notice of motion returnable on the 30th January, 2009, seeking the following relief:-

1. An order determining whether the court has jurisdiction to determine the proceedings.

2. Without prejudice to the foregoing an order determining whether or not, if it has jurisdiction to determine the

within proceedings, which was denied, ought to exercise that jurisdiction having regard to the principles of forum

conveniens and/or determining whether or not there is a more convenient jurisdiction in which the matrimonial issues

arising between the parties might be determined.

3. Without prejudice to the foregoing, an order for the determination, as a preliminary issue, whether or not the

grounds upon which a decree of judicial separation (and the ancillary reliefs consequent therefrom) are sought by

the applicant are satisfied and whether the court has jurisdiction to grant an order for judicial separation pursuant

to s. 3 of the Judicial Separation and Family Law Reform Act 1998.

4. Further or in the alternative an order staying these proceedings pursuant to the provisions of Council Regulation

No. 44/201001 (Brussels I) and/or Council Regulation No. 2201/2003 (Brussels II bis) or otherwise, as may be

appropriate.

This notice of motion was grounded on affidavits sworn on the 28th January, and it is sufficient for the purposes of this

introductory narrative to quote the grounds which are relied upon by the husband set out in para. 3 of that affidavit as

follows:-

(i) “The applicant did not comply with s. 2(1)(b) and 2(1)(f) of the Judicial Separation and Family Law Reform Act

when filing her special summons of the 8th May, 2008, although she relied on ss. 2(1)(b) and 2(1)(f) in her special

summons and grounding affidavit. The applicant cannot demonstrate under s. 2(1)(f) that a normal marital

relationship had not existed between the spouses for a period of at least one year immediately preceding the date

of application for judicial separation since my wife and I have been living a normal marital life until eight days before

she filed her special summons. Furthermore, the applicant cannot show that under s. 2(1)(b) that I had behaved

prior to 8th May, 2008, in a way that she cannot be reasonably expected to live with me. It is my contention that

she filed for a judicial separation on May 8th as a direct result of meeting another man on April 30th, 2008, and

becoming immediately and totally besotted with him. I say that there is simply no factual or evidential basis upon

which the applicant had any right to file a summons for judicial separation on May 8th, 2008 and I maintain that I

never behaved in such a way at any time during the course of our marriage to justify a claim under s. 2(1)(b).

(ii) I further say that this Honourable Court does not have jurisdiction to determine the within proceedings on the

basis that I do not believe that the applicant has at any time been habitually or ordinarily resident in Ireland, nor

has she been or is she domiciled, in Ireland.”

The affidavit continues to describe the marriage in detail and also relies on the extensive business interests of the

husband in the Cayman Islands, together with other connections of the family there, indicating his claim that the marital

disagreements should be heard by a court in the Cayman Islands as a more convenient forum. To substantiate this claim

the husband had initiated proceedings for divorce in the Cayman Islands and, while it is as yet not clear whether a pre-

nuptial agreement made between the parties on the 11th May, 1996, in Florida may have any weight either in Irish or

Cayman Island proceedings, it is fair to say that if such an agreement were to have weight of any significance, there is a

fear on the part of the wife that it would have more weight in relation to certain very restrictive provisions affecting her

in the event of the case being heard in the Cayman Islands. By order made ex parte on the 23rd January, 2009, this court

ordered that:-

1. That the husband be restrained until further order of this Court from continuing to prosecute the Cayman Islands

divorce proceedings, and

2. The husband be restrained until further order of this Court from disposing or otherwise dealing with his assets

wherever situated in such a way as to reduce their value below €40m of there value as of the date of the said

order, whichever shall be the lesser sum.

And the motion was made returnable for interlocutory hearing on the 30th January, 2009.

4. In subsequent hearings by the Court the injunctive relief granted in that order has been continued on foot of

appropriate undertakings given on behalf of the husband.

Facts Relating to Residence

5. The husband was born in England and after University he was employed in England for some time. He became resident

in Cayman in 1975, and developed his business from there. This was a communications business and was international in

nature, necessitating frequent travel by the husband. He is an outstanding and energetic business man, and his business

prospered due to his talents and was helped, no doubt, by the favourable taxation status which he acquired through his

move to Cayman. The wife was also English born, and having graduated there with a language based degree, and

engaged at a high level in amateur University drama, she obtained a media job as a journalist in England.

6. The husband had an interest in bloodstock and racing from an early age, and the wife met the husband through her

work as a journalist when dealing with racing matters with the husband in or about the 15th June, 1990. A relationship

developed between them quickly, and the wife went to live with the husband in Cayman, and for most of the time she

resided with him in the Cayman and became an employee in his business. The wife moved out to Cayman in December,

1990. The husband also had an apartment in Florida, and they spent most of the winter months travelling between Florida

and Cayman and two other islands, such as Jamaica, where he had significant business interests. The wife said that in or

about April or May the following year in 1991, they came back to England to follow the horses, and from then on it is fair

to say that they led a peripatetic lifestyle. This was typified by the husband’s boast, (when he met the wife first), that

for up to twenty years he had not spent more than two weeks in one place. When they were in England they had a flat in

London and a house in Scotland, but they also spent time in various hotels and other places in England to follow racing

interests. From the outset, therefore, the husband (and, in a dependent fashion), the wife, had two focuses of interest,

one the Caribbean and the larger world relating to the media communications business; and United Kingdom, (and to a

lesser extent Europe) in the summer for the racing interest. The couple would usually spend the months between May and

September, October on this side of the Atlantic and the rest of the year on the American side.

7. The husband retired from his media communications business in 1991, and was very successful in selling this business.

His retirement did not last long however, and he soon established another business centred around ideas he had for

leisure and tourist businesses in and around the Caribbean. He sold most of his interest in that other business in or about

1994. However, it cannot be said that he has ever retired in a general sense and his life is still punctuated by frenetic

involvement in business interests and the travel they entail.

8. In or about March, 1993, while attending a sporting event, the couple became interested in living in Ireland, and,

friends introduced them to a sports and country club to which residential accommodation was attached (hereinafter

referred to as the Irish Club), where they purchased an apartment. They had a house warming for the Irish club

apartment in June of 1993, as they had acquired a lot of friends in Ireland through the racing world, and from then on, the

apartment in the Irish club took over the role of the house in Scotland and, while the peripatetic lifestyle continued, the

couple spent more and more of their time in Ireland.

9. The couple became engaged to marry each other in September, 1994. Around that time they had some discussions in

relation as to where they would like to live as a married couple. The wife felt that the Cayman was not the right place to

bring up a family. She wanted to be nearer home. The husband agreed with that view because he wanted to have a

family, and if the couple were going to have a family it should be somewhere the husband said he felt there were family

values. The husband was a Roman Catholic but the wife was not – she became a Roman Catholic last year – but the

husband expressed a view that he wanted to bring his children up in a place that had strong family values and catholic

values. Given the existing mind set of the engaged couple at that time the choice seems to be between Ireland and

England as a place that might meet their preferences for their children, but they decided that Ireland fulfilled all those

requirements as they had a good circle of social friends, both social friends and racing friends in Ireland and they liked the

way of life here. Ireland was also very convenient for travelling to England, in the summer, to continue to follow the

husband’s racing interests. Although the couple did not dwell too much on the taxation aspect of the husband’s life

dictating that he would not settle down to married life in England, the choice of Ireland above England would in an

objective sense seem to have been heavily influenced by the fact that living in Ireland would not prejudice the husband’s

very valuable non-resident tax status in the UK.

10. The couple married in May, 1996 in a Roman Catholic provincial church in this jurisdiction and the wedding reception

was in the Irish club where the couple had their apartment.

11. When the couple had been married, and there was the possibility of having a family, they decided they wanted to

establish a stud farm in Ireland. The husband had some brood mares in Ireland, but wanted to see more of them, and to

be personally more involved in the breeding side of things. The first child was born while the couple lived in the apartment.

By the time the second child was born in September, 1998 the couple had moved out to a rented house in the Irish club

estate.

12. After the second child was born the husband went to the American side of the Atlantic on business and entrusted the

wife to seek out a suitable stud property. The preference was to have suitable ground not far from the airport. The

husband pressed the wife on the telephone from America to hasten her search and eventually the wife discovered a 174

acre stud farm already with post rail paddocks and a barn of 32 loose boxes with a Georgian house, known as T. house –

a bit further afield than the preferred striking distance from the airport. The husband returned, liked the property, and

quickly signed the contract for its purchase. The couple moved into the T. house in 1999, and in late 1999 the third child

was born. T. house was then a fairly basic Georgian farmhouse and in January, 2001 the couple started a major

renovation/extension programme with lasted about twenty months. The husband took the conveyance of the house in his

own name and it seems that the couple did not need to borrow to fund the purchase. Renovation and extensions to the

house cost about £1,000,000 and were extensive, leading to a very imposing seven bedroom Georgian house.

Subsequently, the husband built a stand-alone office premises, which has become the focal point of his business interests

in the world, housing, as it does, his able assistant, who could be described as the assistant chief executive of his

business (as the husband continues to be a seriously hands-on manager). This office premises in T. house estate is on a

grand scale, exemplified by his own personal office which is in the region of 20 feet by 30 feet in area and lined with

mahogany panelling.

13. Additional lands were purchased to make the estate one of over 200 acres and, on part of the estate a grass landing

strip was developed to facilitate the family’s eight seater plane. Initially two studs were developed with separate

managements, but of late these have been integrated. Extensive buildings were constructed by way of barns and loose

boxes to expand the range of the breeding business carried out on T. house. There was no training carried out there,

save for the use of an exercise ring constructed by the husband for the purpose of, inter alia, preparing yearlings. The

husband has continued to maintain an interest in racing but his training is done by trainers outside T. house. Over the

years a number of other dwelling houses were constructed on T. house, generally to facilitate staff of the house and stud

– there may be now as many as seven houses on the estate, all recently constructed – . In the recent past the family

have constructed and developed a large full size sports pitch with pavilion on a grand scale for a sum in excess of seven

figures. In addition to the sports ground, there are several areas developed for sports and pastimes of adults and children

on a smaller scale. There may have been as many as 40 brood mares between the two studs. The husband has stallions

but not on the T. site – they are kept at a specialist establishment elsewhere in Ireland, but he uses “outside” stallions as

well. The stud farm at T. house does not seem to be significant as a profit generator within the context of the husband’s

business interests, but the couple seem to be well pleased with the success of the stud farm business, as it is capable of

generating considerable cash and they have had at least one very notable success in sales of young bloodstock. They

have also raised very successfully a number of home bred horses. The couple, and especially the husband, are certainly

very proud of the stud operation, and when anybody comes to stay at T. house, the first thing the husband does is to

take them on “grand tour” of the estate. The husband was always a very keen sportsman and is equally, if not more

proud, of the recently constructed sports pitch and pavilion which, (although not quite up to international standard) has

hosted at least one international challenge match at its opening, and notably has hosted a visiting schoolboys team from

his son’s English school at A of which his son is a member when they played an Irish schoolboys selection. The visiting

school’s side were accommodated at T. house estate and this necessitated provision for fifteen in all - eleven year old

boys, two teachers, the headmaster and sports coach.

14. When the couple bought T. house, a housekeeper came with the property, and she remains employed by the couple,

although now 73. A gardener cum handyman also came with the property. The staffing has expanded however, and at

one stage there were three nannies to help with the children, who continued to be born in quick succession, and there

were (certainly prior to the recession), between ten and twelve staff employed on the stud end of the business.

Husband’s Business Patterns

15. In addition to keeping up his business interests on both sides of the Atlantic, the husband became chairman of a busy

administrative organisation in England (hereinafter referred to as the “A.O.”) for six years. His term of office in that

position ended in or about 2004 and this meant frequent international travel from whatever base the husband was using

at the time, and also involved frequent social outings, dinners and presentations where the husband was accompanied by

the wife. While the activities of the A.O. continued throughout the year, the husband was, in general, able to

concentrate on them more during the summer months, while on this side of the Atlantic. He thus became a very busy man

and led an extremely frenetic life and this does not seem to have abated to any significant extent, even after he ceased

his chairmanship.

The Children’s Lives

16. The children were all born in Dublin and the pre and post natal arrangements, together with the confinement, were all

arranged in Dublin and hence it is safe to assume that their medical records commenced and remain in Dublin. Whenever

the mother and children were fit to travel after birth, the family travelled after Christmas every year to the Cayman and

remained there until Easter, where they went to school and lived in the original apartment owned by the husband which

was augmented by the purchase of another apartment across the courtyard on the same complex, which provided ample

accommodation for the children and the nannies (if they travelled with them). The children attended a Roman Catholic

school in Cayman but they were nevertheless tutored by their mother in relation to the Irish school curriculum while in

Cayman so that they did not fall behind. Apparently, the exit of the children from the Irish school to the Cayman school

was organised and approved by the Irish School Authorities. It was not contested that the standard of the Cayman

school was not as high as the Irish school, and that the Irish school provided the main thrust of the children’s education.

A considerable amount of packing was necessary to bring the children with the parents to the Cayman and this

represented a considerable strain for the wife. She said that the strain was much less and/or easier to bear in relation to

the packing to return to Ireland, as she regarded such return as returning to “home”. While the children did not have the

extensive field sports facilities available in Cayman as they had in T., there nevertheless was the beach and the beautiful

weather to compensate, enabling them to play cricket and beach sports, but perhaps not to the level of intensity and

organisation as in Ireland. There was no private beach attached to the apartment in Cayman.

Last Stay in Cayman in 2008

17. The stay of the family in Cayman in winter/spring 2008 followed the same pattern as heretofore with three significant

changes. Firstly, the family travelled over for the first time for Christmas and spent their Christmas in Cayman. Secondly,

T. the eldest son, left with the husband for his boarding school in England via Ireland on the 6th January, 2008,

approximately, and thereafter the husband was absent from the Cayman for most of the term. There was also a change in

the living accommodation insofar as the second apartment had been rented in 2007, and thus, the family had to live in

more cramped conditions where a nanny had to sleep on a sofa in the husband’s office in the apartment. In addition to

busying herself with looking after the five remaining children, the wife also acted as a negotiator –cum – Clerk of Works in

respect of a development project where the husband was having difficulties with the persons employed to execute same.

Whereas the husband had an administrative person to deal with day to day matters, her responsibilities were not

extended and required to be complimented by the input of the wife.

Social Life in Cayman

18. The social life consisted of dinner parties back and forth between private houses, outings to restaurants and

functions in golf clubs.

Plans for Cayman in the Future

19. Both husband and wife had a desire to build a house on a site acquired by the husband and move out from the

apartments, but this plan has not come to fruition and the husband at the time of the hearing is endeavouring to sell the

site.

Tax Implication for Life of Couple

20. Generally, with the exception of one year for Ireland, the husband’s tax status in both the UK and Ireland was that of

a non-resident. It is unnecessary to go into the absolute detail of the exact requirements to retain such non-resident

status in both countries, but suffice it to say that, a rule of thumb test is that the person claiming non-resident status

should be absent from each country for a period of 183 days. This means that Ireland is a convenient place in which non-

resident tax status in the UK may be enjoyed, and at the same time, be within commuting distance. This facility was very

apparent during the tenure of the husband as chairman of the A.O., where his weekly involvement might be from Monday

to Thursday in the UK or, locations dictated by his involvement in the UK from which he could fly “home” to Ireland as he

described it. He also on further consideration mentioned that flying “home” when operating on the other side of the

Atlantic meant flying back to Cayman. He does not have any tax status in Cayman as such, except that his non-resident

tax status in Ireland or U.K. means that he does not pay any tax on income in Cayman as for the practical purposes of

this case, there is no tax in Cayman. No application for Irish children’s allowances was made, although raised by the wife

with one of the husband’s assistants in the financial area. The reason advanced to the wife by the husband was that,

people such as the husband and wife with considerable assets should not depend on the State for payments. However,

the reason may also have something to do with staying away from the clutches of the Irish and perhaps even the UK

Revenue Authorities by putting information for the purpose of claiming the children’s allowances, which might prejudice the

non-resident status for tax purposes in either, or both countries.

Application for Right to be a Caymanian by Wife and other Applications by Husband

21. By letter of the 9th February, 2007, the wife applied to the Caymanian Authorities for the right to be a Caymanian.

She had been a permanent resident of Cayman since February, 1998 and her husband was granted the right to be a

Caymanian “a few years ago”. A guide to applicants in relation to an application for the right to be Caymanian on the

grounds of marriage was produced to the court. this leaflet refers to s. 22(4) of the Immigration Law 2003, and

stipulates:-

“Any person

(a) who has been married to a Caymanian - …(e) who is legally and ordinarily resident in islands

immediately preceding his application…may apply to the Board for the grant of the right to be

Caymanian.”

The note to this section provides “legally and ordinarily resident” as defined by the Immigration Law 2003, as meaning

“the voluntary, physical presence in the islands for a period of time without legal impediment of a person (other than a

tourist visitor or transit passenger) during which period he regards the islands as his normal place of abode for the time

being, save that absences abroad for purpose of education, health or business during such period shall count as a

residence in the islands”. The application for grant for right to be Caymanian was produced to the court. It was signed by

the wife and dated the 9th February, 2007. This application was to be grounded on affidavit and the inaccuracy or falsity

of any statement or representation contained therein may be a criminal offence under Caymanian law. In that application

the wife stated, inter alia, that she was a citizen of the United Kingdom, had a United Kingdom passport and in answer to

query No. 4 stated that in addition to being a citizen of those countries, she was also a permanent resident in the

Republic of Ireland and stated that prior to coming to the Cayman Islands the addresses where she lived for more than six

months during the past ten years were from March, 1999 to present T. house, Ireland, and from March, 1999 to June,

2003 in the Irish Club, Ireland. In response to question 9, she stated that her assets and property were a share of a

family estate in Ireland and family home in Cayman. It appears that she furnished a certificate from the officer in charge

of the Criminal Records Office certifying that there were no convictions recorded in the criminal records of the Cayman

Islands against her, and which stated that she was a “resident of the Cayman Islands”. At the same time, the husband

signed the declarations required for the Irihs registered company O.H.A.S. Limited, and Irish company on the 30th

September, as an Irish resident individual, and also the husband signed a Change of Director details return for the same

company on the 3rd October, 2008, as an Irish resident individual.

Return from the Caymans

22. After the family returned from the Cayman Islands the children went back to school in Ireland subject to holidays

having been taken using Ireland as the base, either by the husband and wife alone or by the entire family, so that in

comparative staffing terms, Cayman versus Ireland, apart from one administrative person left in the Cayman, (who has

already been described), the domestic staff arrangements in relation to the apartment were skeletal to say the least, but

they did facilitate occasional visitors to the apartment while the husband and wife were not using same. The staffing

arrangements in T. estate however, continued unaltered even in the absence of the family in the Cayman, with the

exception that the nannies may have travelled with them to the Cayman and also on holiday, especially to France.

The Law in Relation to Jurisdiction

23. The jurisdiction in relation to divorce and legal separation is set out in Brussels II bis (Council Regulation

(EC2201/2003)). Article 3 of Brussels II bis relating to general jurisdiction provides as follows:-

“1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the

Member State.

(a) In whose territory:-

- the spouses are habitual resident, or

- the spouses were last habitually resident, insofar as one of them still

resides there, or

- the respondent is habitually resident, or

- in the event of a joint application, either of the spouses is habitually

resident, or

- the applicant is habitually resident if he or she resided there for at least

a year immediately before the application was made, or

- the applicant is habitually resident if he or she resides there for at least

six months immediately before the application was made and is either a

national of the Member State in question or, in the case of the United

Kingdom and Ireland, has his or her ‘domicile’ there;

(b) of the nationality of both spouses or in the case of Ireland or the United Kingdom

of both spouses.”

24. Article 6 of Brussels II bis dealing with exclusive nature of jurisdiction under Articles 3, 4 and 5 provides:-

“A spouse who:-

(a) is habitually resident in the territory of a Member State: or

(b) is a national of a Member State, or in the case of the United Kingdom and Ireland,

has his or her ‘domicile’ in the territory of one of the latter States may be sued in

another Member State only in accordance with Articles 3, 4 and 5.”

25. Article 7 of Brussels II bis dealing with residual jurisdiction provides in para. 1 as follows:-

“1. Where no court of a Member State has jurisdiction pursuant to Articles 3, 4 and 5, jurisdiction

shall be determined, in each Member State by the laws of that State.”

26. Section 31(4) of the Judicial Separation and Family Law Reform Act 1989, provides in relation to jurisdiction of the

National Court in this instance as follows:-

“(4) The jurisdiction referred to in subsection (2) of this section shall only be exercisable where either of

the spouses is domiciled in the State on the date of the application commencing proceedings or is

ordinarily resident in the State throughout the period of one year ending on that date.”

27. Brussels I (Council Regulation (EC44/2001)) dealing with jurisdiction in relation to maintenance claims provides as

follows:-

“1. This regulation shall apply in civil and commercial matters whatever the nature of the court or

tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.

2. The regulation shall not apply to:-

(a) the status or legal capacity of natural persons, rights and property

arising out of a matrimonial relationship, wills and succession.”

28. In relation to special jurisdiction regarding maintenance matters Article 5, para. 2 provides as follows:-

“2. In matters relating to maintenance, in the courts for the place where the maintenance

creditor is domiciled or habitually resident, or if the matter is ancillary to proceedings concerning

the status of a person, in the court which, according to its own law, has jurisdiction to entertain

those proceedings, unless that jurisdiction is based solely on the nationality of one of the

parties.”

29. I note from the explanatory report of Professor Borras in relation to the Brussels Convention on Parental Responsibility

and its successor and the recital of its successor Brussels II bis, that Brussels II bis does not deal with maintenance,

although the court having jurisdiction under Brussels II bis to deal with judicial separation may well have jurisdiction to

deal with maintenance otherwise. Under Brussels II bis the court dealing with separation or divorce cases has jurisdiction

to deal with matters of parental responsibility in relation to the children, and hence, I shall not deal with jurisdiction in

relation to children.

30. On the authority in Van den Boogaard v. Loumen [1997] E.C.R. 1147, paras. 21, 23 it is now widely accepted that

maintenance within the meaning of Brussels I may include a lump sum providing for the needs of a spouse or children in

the nature of maintenance. On this principle, I hold also that the concept of maintenance may be extended to pension

adjustment orders where the purpose of the pension adjustment order is to provide maintenance type support for parents

or children. A residual question remains in relation to potential provision over and above maintenance in the way of a lump

sum or other provision, which may under the approach adopted in the cases following T. v. T. in relation to ample

resources cases, to reflect a payment approaching equality or indicating parity of esteem may be dealt with in the event

of the court having jurisdiction to hear these judicial separation proceedings under the general jurisdiction of Article 3 of

Brussels II bis. This issue was dealt with briefly in the judgment of Sheehan J., in O.K. v. A. [2008] IEHC 243, where at

para. 11510 he stated as follows:-

“With regard to the final point of Mr. Duncan’s submission that this Court might stay these proceedings

in whole or in part and on terms, the only matter that remains to be considered is whether or not the

question of ancillary financial relief whose jurisdictional basis in this case is under domestic legislation, is

still subject to the doctrine of forum non conveniens. In our law, judicial separation is inextricably linked

to “proper provision” for dependent children and divorce under Article 41 of the Constitution is also

inextricably linked to “proper provision”. It is difficult to envisage how these matters can properly be

separated….”

31. In the case S.J.N. v. P.O’D. (Abbott J.), I held that proper provision included a lump sum, some or all of which must

have been over and above maintenance on the basis of (inter alia) the need to keep the husband and father of the

children “bubbly” for them. Thus, I hold that the strictures of s. 3(1) of the Act of 1989 require that before granting a

decree of judicial separation, the court must consider that the order is in the interests of the children and this means that

provision is made for them and that provisions is made for the spouses who will be their carers.

32. Article 5 of Brussels II bis relating to conversion of legal separation and divorce provides:-

“Without prejudice to Article 3, a court of a Member State that has given a judgment on a legal

separation shall also have jurisdiction for converting that judgment into a divorce, if the law of that

Member State so provides.”

While this provision only has application to judgments in this jurisdiction which “dovetail” in a planned way with each

other, it does put judicial separation in the same category as divorce and this lends weight to the view of Sheehan J., in

O’K. v. A. in relation to proper provision being a precondition for judicial separation.

The Law in relation to Habitual Residence

33. In Marinos v. Marinos [2007] E.W.H.C. 2047 (Fam.)(3rd September, 2007), habitual residence within the meaning of

Brussels II bis was held to have an autonomous meaning in Community Law which is derived from the jurisprudence of the

European Court of Justice (Pedro Magdalena Fernandez v. Commission of the European Communities (Case C-452/93P)

[1999] E.C.E. 1-4295; Robin Swaddling v. Adjudication Officer (Case C-90/97) [1999] E.C.R. 1-01075, [1999] 2 F.L.R.

184), and at paras. 25 and 26 of that judgment Mumby J. stated:-

“There is as yet no decision of the ECJ directly in point as to the meaning of Article 3 of the Regulation.

But the explanatory report on Brussels II prepared by Alegria Borras (Official Journal of the European

Communities C221/27, 16th July, 1998) is illuminating. The discussion is of Article 2 of Brussels II but it

is equally applicable to Article 3 of Brussels II (revised). In para. [30] it is said that:-

‘The grounds adopted are based on the principle of a genuine connection between the

person and the Member State.’

The final two limbs of para 1(a) of the Regulation are considered in para. [32];

‘Both these provisions allow forum actoris in exceptional cases on the basis of habitual

residence combined with other elements. That is why the fifth indent allows jurisdiction to

lie with the court of the Member State in which the applicant is habitually resident if he or

she resided there for at least a year. Since some Member States did not find the rule set

out on those terms sufficient and bearing in mind the frequency with which the…27 so much

for the general background what follows is the crucial part;

‘The last requirement led to a discussion of establishment of habitual residence, taking

account of the situation of the spouse who returns to the country of origin as a

consequence of the breakdown of the marriage. The existence of the connection will

be assessed by the court. Although the possibility of including a provision determining

habitual residence similar to the one in Article 52 of the 1968 Brussels Convention was

discussed, in the end it was decided not to insert any specific provision on the

matter. However, although not applicable under the 1968 Brussels Convention,

particular account was taken of the definition given on numerous occasions by the

Court of Justice, i.e. “the place where the person had established, on a fixed basis,

his permanent or habitual centre of interest, will all the relevant facts being taken into

account for the purpose of determining such residence.’”

Other proposals were, therefore, rejected whereby it would be sufficient for the

applicant to have his or her habitual residence there for a total of at least one year in

the five years immediately before the application was made, even when combined

with nationality or “domicile”.

It is, therefore, plain that the intention was that the phrase “habitual residence” in

this context (Brussels II and now Brussels II (revised)) should have the meaning given

to it in the case law of the ECJ to which I have already referred.”

It should be noted that Mumby J., in that judgment did not refer to the Borras report as dealing with the Brussels

Convention but instead with the Brussels II Regulations, but this error is of no consequence.

34. The same approach was taken in the Irish case C.M. v. Delgacion Provincial De Malaga [1999] 2 I.R. 363, where

McGuinness J. in a judgment of the Supreme Court held that “habitual residence is not a term of art, but a matter of fact,

to be decided on the evidence”. This case was followed by Sheehan J. in O’K. v. A. [2008] IEHC 243, where Sheehan J.

accepted that the assertion of the applicant that the parties intended to settle and raise their children in Ireland where

their “centre of interests is located” were factors which:-

“far outweigh any consideration to be given to the respondents assertions that the primary residence of

the family is in the USA, that both he and the applicant and the children are citizens of the USA, that

they married in the USA and that they entered a pre-nuptial contract there, that most of the assets

are in the USA and he pays his taxed in Florida”.

35. A question crucial to the issues in this case is whether there can be concurrent or alternate habitual residence. Mr.

Durcan argued that a number of authorities, both English and Irish, indicate that under the Hague Convention jurisdiction

that there can be alternate habitual residences for children. While I accept that if the court were dealing with a case

involving child abduction I would be bound by these decisions, I do not consider them relevant to the issue as to whether

there can be only one habitual residence at a time to be taken into consideration by a court in deciding whether it should

accept jurisdiction under Brussels II bis of a case of which it is seized. Marinos v. Marinos and another English case

Monroe v. Monroe [2007] EWHC 3315 (Fam.) are both authorities which I find to be of convincing persuasive effect for

the reasons advanced in these judgments for the above proposition and particularly, by reason of the fact that the

dynamic jurisdiction of Brussels II bis, arising from the intervention of the operation of the principle lis alibi pendens,

absolutely compels the court to engage in a disciplined process to ascertain with certainty where the jurisdiction lies in

the event of two courts of Member States being seised at the one time. It also arises from the requirement that the

jurisdiction conferred on the courts of Members States by Brussels II bis is exclusive, that is to say there is no jurisdiction

arising other than that which arises under the criteria set out in the Regulation. If the interpretation of habitual residence

does not include a requirement that, it too, must be exclusive, then the whole working of the process ascertainment of

jurisdiction under Brussels II bis would fall into chaos and, the parties moving from one Member State to another would be

denied, the predictability and certainty in relation to jurisdiction and consequently enforceability of court decisions which

Brussels II bis is primarily designed to provide. This is not to say that parties may, depending on the circumstances, quite

frequently change their habitual residence over time, perhaps many times. Nor does it mean that on occasions the facts

confronting a court seised of a matter to which Brussels II bis may relate may find itself perplexed with the difficulty in

the face of two balanced and conflicting arguments as to where the habitual residence lies of deciding for the purpose of

Brussels II bis, what is the actual habitual residence of a party. In such a situation the absolute imperative of Brussels II

bis is that, notwithstanding the difficulties, the court must go on to decide, one way or the other, where habitual

residence lies.

36. In approaching this case I consider that the intention of the parties in relation to where they would settle and bring

up their children for the purpose of establishing values for them, is a significant factor within the factual matrix to be

decided in accordance with the manner suggested by McGuinness J., in Magdalene and, that the centre of interest of the

family should be adjudicated upon the basis, inter alia, of the welfare of the children as defined by s. 3(1), para. (b) of

the 1989 Act, not as an absolute guide, but as an appropriate model of analysis under the categories mentioned therein,

where the definition is as follows:-

“Welfare” comprises the religious and moral, intellectual, physical and social welfare of the children

concerned.

Ordinary Residence within the Meaning of the 1989 Act

37. Counsel for the respondent placed considerable emphasis on the fact that the Statute required that a party is

“ordinarily resident in the State throughout” (my parenthesis) the period of one year ending on that date. Within that

submission counsel for the respondent accepted, of course, that holidays would be an exception. The debate between

counsel in relation to the definition of ordinarily resident centred around picking exceptions like holidays, which could break

the continuity and take away from the satisfaction of the criterion of residence “throughout” the year, but which would

nevertheless not on a commonsense basis mean that a person was not ordinarily resident in a particular place throughout

the year. Various examples were given rather like those given in the guidance note used in relation to the application of

the applicant for Caymanian status, which has been described above. While that course of debate was helpful, I consider

that the court in deciding the matter should isolate the principles upon which ordinary residence might be defined, given

that so many exceptions of a temporary nature could be found so that the criterion of “throughout” may be satisfied,

notwithstanding temporary absences within the period of a year. The first issue to be decided is, what does ordinary

residence mean. Counsel for the applicant suggested that the Oxford Dictionary meaning of the word “ordinary” is helpful

as it is to be defined by the use of the word “usual” and that “usual” is in turn defined as “happening or done typically,

regularly or frequently”. He went on to say that the Oxford Thesaurus suggests “habitual, customary, accustomed,

wonted, normal, regular, routine, everyday, established, set, familiar, typical, ordinary, average, standard, and stock”. I

do not consider that these definitions establish any further principles by which to analyse ordinary residence. The meaning

is more fruitfully analysed by firstly taking a view in relation to how long a person is to stay at the residence. The

question should be asked is the stay to be temporary, or is it to be for a fixed term, with occasional absences, or is it to

be for an indefinite period in to the future, with occasional absences. I consider the test of residence for an indefinite

period resolves the difficulty posed by inconclusive analysis by way of miscellaneous examples of temporary absences

used by counsel on both sides in this case. Obviously some type of tenure, however slight, should be associated with the

ordinary residence together with an intention to return to it indefinitely regardless of absence. The second question of

principle arises from the analysis above in relation to habitual residence, and that is whether the ordinary residence should

have an exclusive meaning, that is to say, that there can be only one ordinary residence at a time. I think not. I consider

that on the test of whether a person intends to return to the residence indefinitely allows of two, or even more

residences within that test, but obviously this principle must have some limits to be decided in the circumstances of each

case defined by the question as to whether the owner of the residence has actually settled in a place to the extent that,

the residence in the second place is actually used for nothing more than a holiday home. I find that the description of

“ordinary residence for the time being” is consistent with this analysis.

38. In summary, the principles applicable to the term “ordinarily resident” should be as follows:-

1. The residence should be one to which a person intends to return indefinitely despite temporary

absences, and

2. There should be some tenure, however slight, of a physical premises – a residence, and

3. The person ordinarily resident in one location has not lost that ordinary residence by reason of

his or her settling in another residence to the extent that, the residence in which ordinary

residence is claimed is now only used as a holiday home.

This analysis puts in focus the question of how the qualification “throughout” in the subsection might qualify the test

posed by the analysis of whether a person is ordinarily resident in a place or not, loses such residence. Having regard to

the fact that the word “throughout” in its plain meaning does not mean that residence in the sense of actual presence is

to be for 100% of the time, I find that the criteria posited by the analysis must be met for 100% of the year. Having

regard to the fact that the courts have always construed the Family Law Statutes on a schematic basis, the conclusion I

have reached above should be checked against the Common Law tradition of establishing jurisdiction in relation to

matrimonial matters with an international element in a place which is the “seat” of the marriage, or at least in a place

having a substantial connection with the marriage. I find that the conclusions I have reached in relation to the question

as to whether a person is ordinarily resident throughout the year is quite consistent with that most likely traditional

schematic approach.

Conclusions

39. In relation to the contest between Ireland and Cayman, I find as follows:-

1. The family has established itself with an Irish and a Cayman residence.

2. The family intend to reside indefinitely in Ireland and Cayman on the basis primarily of nine

months approximately in Ireland and three months in the later half of winter in Cayman.

3. The stay and setup in Cayman is not merely using Cayman as a holiday home,

4. The centre of interest of the family is predominantly and mainly Ireland for the following

reasons:-

(a) The parties decided from their engagement that if there were to be children

of the marriage, they were to be brought up in Ireland having regard to the fact

that there were special so called “family values” in Ireland, and this intention

has been practised and realised by the family having six children all of whom

were born in Ireland and were reared in the Roman Catholic faith and attended

local catholic schools in Ireland and for the two older ones, a catholic boarding

school in England, and due to the fact that this catholic ethos of attending a

catholic school is replicated (although not as satisfactorily) when the family

stay in Cayman.

(b) The seat of the children’s interests using the analytical aid of the definition

of welfare in s. 3(2)(b) of the 1989 Act, is overwhelmingly in Ireland, insofar as

the moral, intellectual, physical and social welfare of the children is catered for

much better in Ireland than in Cayman as evidenced by the vastly superior

sporting facilities, residential accommodation facilities (especially having regard

to the cramped nature of the last remaining apartment, now that the second is

rented in the Cayman’s), the superiority of the schools in Ireland from the

religious, moral and intellectual point of view, the superior social welfare from

the point of view of a more integrated lifestyle with the community in a fixed

way in Ireland, rather than have a beach life in Cayman for the children, and

also the prospect of being close to extended family and developing networks of

friends on a more sustainable basis in Ireland and England where the children will

probably follow the pattern of school attendance in English boarding school of

the two older girl and boy. Also by reason of the fact that in terms of time

spent with Ireland as a residence of nine months per year, the children are

predominantly Irish and their status is of Irish citizens having been born here,

unlike their status as described in the Caymanian residential documentation as

being of a right to residence as a dependent, subject to review when eighteen.

(c) Having regard to the fact that the husband’s business is in effect

administered from Ireland in T. house at the higher management levels, and the

fact that the parents are committed as their prime responsibility to looking after

the children, the main seat of interest of the parents is Ireland. Notwithstanding

the fact that (if the world were not in recession), the main profit making

activity of the husband is based outside Ireland, the overwhelming evidence

that he was (notwithstanding his frequently peripatetic lifestyle) a committed

family man throughout the marriage and remains so, means that his main centre

of interest is Ireland.

(d) The Irish rights of residence are superior for the children as Irish citizens

and both the wife and the children have the protection of the Family Home

Protection Act 1976, on any view of the word “ordinarily resident” in the

wording of that Act.

40. Having regard to the foregoing, I find as a matter of law and of fact that the habitual residence of the family, and

each member of the family, is Ireland and that the court may proceed on that basis to accept jurisdiction of such

proceedings as to which Brussels II relates on that basis, insofar as indents 1 and 3 of Article 3(1)(a) of Brussels II bis are

satisfied.

Jurisdiction under the Brussels I Regulation

41. At least the maintenance aspect of the judicial separation may be dealt with under the criterion, however, having

regard to the conclusions of this judgment in relation to law, I consider that the provision of maintenance is dealt with by

the court in exercising of the jurisdiction as decided by Brussels II bis, having regard to the integrated nature of the

substantive law requiring provision to be made in the manner described by me in the analysis of the law above. It is to be

noted that neither the Brussels Convention nor Brussels II bis make any claims to alter any substantive Irish Law other

than jurisdiction.

42. Insofar as there may be any residual property matters to be dealt with outside the purview of my conclusions in

relation to the integrated nature of the exercise of the jurisdiction under the 1989 Act, under Brussels II bis, or in relation

to the alternative approach to maintenance matters under Brussels I, I find that both parties were ordinarily resident

within the meaning of the 1989 Act in Ireland throughout the year prior to the proceedings being initiated, and

notwithstanding that this criterion may also be met in relation to the Cayman Islands that the court has jurisdiction (if

jurisdiction is needed in this case) to deal with such residual matters as are necessary to enable the full exercise of the

powers to make provision under the 1989 Act.

Second Main Issue

Issue in Relation to Entitlement of the Applicant to Judicial Separation

43. A most exceptional aspect of this case is the fact that the parties corresponded either by fax, text or email on an

almost daily basis (sometimes many times a day), notwithstanding the frequent absences necessitated by business and

professional interests of the husband from the wife. In addition there was telephone contact by landline and by mobile,

and notwithstanding silences, (which would not be uncommon in many marriages), the parties spoke to each quite a lot

and this verbal communication (which at times could be quite revealing), was in turn often recorded or least reflected in

the written communications which have been available to the court. It is difficult to envisage a case where the evidence

presented would be more suitable for examining the issue in this case centring around the grounds required in s. 2(1)(b)

and (f) in the 1989 Act which provide as follows:-

“(b) That the respondent has behaved in such a way that the applicant cannot reasonably be

expected to live with the respondent, and

(f) That the marriage has broken down to the extent that the court is satisfied in all the

circumstances that a normal marital relationship has not existed between the spouses for a period

of at least one year immediately preceding the date of the application.”

The hearing on this issue took place after the court had given its decision in outline in relation to the jurisdictional issues

arising under the judgment on these topics above. This decision was given before a judgment was given in the European

Court of Justice on habitual residence of children under Brussels II bis, and that this judgment could not be considered.

However, it is a comfort to note that that judgment would not have altered the decision of this Court.

The Facts

44. The parties met in 1990 when the wife worked in the media and interviewed the husband. A friendship, and then a

relationship, quickly developed between them and she gave up her employment in the media and moved to Cayman with

the husband. She was employed by the husband, and this employment, she said, was as much to cover up for the fact

before her parents that she was actually living with her future husband. The relationship broke up for while, and she had

to go to Florida without salary at the husband’s instigation. When they became engaged in 1994 and decided to live in

Ireland, the marriage was postponed once at the husband’s instigation. They jointly decided on living in Ireland and would

have a family raised within Ireland, and on the choice of the apartment in the Irish Club and the houses thereafter. When

the first child was due to be born the husband, prompted by a friend, made some attempts to have the child born in

Florida, but the wife resisted, and the couple resolved to have all the obstetric and gynaecological aspects dealt with in

Dublin, and that position remained for the five other children. The husband decided the pattern of movement between

Ireland and the Cayman as described heretofore, and he also decided a more or less fixed pattern of holidaying in France

in the one hotel continuously over twelve years for the month of August. The husband mainly decided where the family

would go on other holidays outside of that pattern and was the primary influence on the family schedule. Although he

could come and go as he pleased, he was a devoted family man by any standards, and he turned up to be present at the

birth of all of his children, although his wife was not best pleased with his overall attention to some of the births (and one

in particular), and criticised him for it. She gave one particular instance of this lack of attention at the birth of a child as

an instance of the insensitivity and inconsiderate nature of the husband. The wife always received a payment on a

monthly basis and this sum amounted to STG£8,000 net just before the proceedings. She was, therefore, given regular

payments which were generous by any standards and were reasonably commensurate with what in a general way is

perceived to have been the resources of the husband. Apart from her personal belongings, the wife shared none of these

resources neither did she have, in any proper sense of the term, her own car, and then often a poor one. It is something

of a mystery to me why she never actually purchased by way of lease or hire purchase a car from her reasonably

generous monthly cash payments. The correspondence and documentation shows with the evidence that the husband

took an interested, but domineering and critical approach to the wife in relation to how she conducted her role as wife,

mother and manager of her household. The wife complained that even before the marriage when the couple broke up, the

husband took an interest in what relationship she might have been in during their short separation as a couple and

pursued her to the point where she had to concede to him that she was “lying” about having a relationship with an

employee of her husband’s while she was in Florida. The husband in evidence accepted this and emphasised that he, like

his father before him, placed particular evidence on the necessity for persons to tell the truth. The correspondence shows

this generally critical attitude of the husband with a particular emphasis on pointing out to the wife where she had been

untruthful or lied to him. As the children got older, it appears that when the husband was away from home anywhere in

the world, the wife was required by him to fax to him a timetable and programme for the family that day. The husband

explained that this requirement was necessitated by the fact that he liked to take an interest in what his children were

doing so that he could talk to them when he came home or was on the telephone to them and he also said, (when

pressed by the court, that the practice was somewhat odd), that it was also necessitated by the fact that there were

many people in the house including children, nannies and staff together with other people who might be involved with the

stud, and that confusion could easily arise such as caused considerable apprehension about the danger perceived or

presented by the fact that, one of the children might have been picked up in worrying circumstances as he waited

outside school to be picked up by his carer in circumstances where confusion meant that he was waiting longer than he

should, thereby presenting opportunities for marauding undesirables to prey on children in such an open and vulnerable

position.

45. The pre-nuptial agreement referred to earlier in the part of this judgment dealing with the first issues was made by

the parties after the wife consulted a lawyer in the United States who advised her that, notwithstanding that the pre-

nuptial agreement might not be fair to her and was against her interests that her bargaining position was very weak in the

event of her wishing to get married to the husband and, having received that advice she decided to proceed with the

marriage.

46. Mr. McCarthy, counsel for the wife, portrayed the marriage and relationship between the husband and wife as having

a number of different layers. There was the good parenting layer exhibited by both parties within the context of the

husband’s very busy schedule. There was the loving and tender layer characterised consistently throughout the marriage

by the numerous letters and written communications, together with birthday and feast day cards of all descriptions

flowing very frequently containing the most effusive and loving terms from husband to wife, but probably mostly from wife

to husband. Sometimes these expressions of love and appreciation took the form of an extraordinary crescendo of

birthday cards (three for one day) and also on the 57th birthday of the husband, the wife gave a good humoured speech

pointing out his hardworking traits, devotion as a father, fairness and good humour. On another occasion she stoutly

defended him at her own initiative, by inviting a critical press to interview her regarding her husband’s virtues. The first

two layers mentioned are not matters upon which the wife relied to prove any ground upon which a judicial separation

could be granted. And, of course, they were heavily relied upon by the husband to prove the contrary. The next layer

isolated by the evidence and relied upon by the wife, is the layer of continued criticism by the husband of the wife in

terms of her generally being untidy, unplanned, untruthful and unpunctual, lacking initiative, coupled with demands that

she must do better. This layer also involved a controlling attitude in relation to money spent by the wife over and above

her periodical payments, resulting in the wife having to reimburse the husband in respect of petty items including a chair

broken during an attack by the husband on the wife in 2006 which had to be replaced at the wife’s expense and also, the

total failure of the husband to make any arrangement over the years for common ownership of the family home in any

shape or form, or of any of the other significant items of wealth of the husband. Further, there were, (what might be

described for convenience) the occurrence of sub-critical incidents of lack of concern perceived by the wife. The most

salient of these amounted to lack of attention when the wife had her wisdom tooth out, by not collecting her personally

from the hospital, and, instead, sending one of the stud staff; getting angry with her when she was not in a good position

to prepare a cooked turkey for American Thanksgiving Day; leaving the restaurant in Cayman necessitating her to have to

walk home after a meal; getting very angry when the couple set off at great speed to catch a plane from America, only

to find the wife arrested and handcuffed as she drove the second car above the speed limit and blaming her for causing

what must have been an absolutely nightmare incident for all the family at a time when sensitivity would probably have

dictated that the husband would have a much more understanding attitude. This layer also involved numerous bouts of

anger and aggression when arguments would arise between the parties, followed by the husband’s withdrawal and long

silence, or even absence, without explanation to the wife. Furthermore, in 2008, and the year immediately beforehand,

the insistence by the husband that the family would go to the usually reasonably expensive hotel in France for the August

holiday, but insist that the wife would use the launderette (albeit with the assistance of the nanny or nannies), was a

criticism on the part of the wife.

47. The final layer consisted of a number of violent incidents, the chief of which from the point of view of relevance may

be enumerated as follows:-

A. An assault which resulted in what the wife claimed were some injuries at the house occupied in

the Irish Club grounds in 1998, followed by the husband storming off and withdrawing from her for

a period. This was acknowledged by the husband and there was a following apology as well as an

apology at the hearing in this Court.

B. An attack in the office in Cayman in 2006, leading to the breaking of the chair in the ensuing

fall of either or both of the parties. (I accept that such an attack occurred, notwithstanding the

vigorous denial of the husband but was reluctant to do so by reason of my concern about the

credibility of the wife’s allegation in the face of the tendency of the husband to give accurate and

truthful evidence. This reluctance has been dispelled by the fact that the wife was in a position

to corroborate her evidence by showing a bank statement showing payment for an item of

furniture around that time).

C. The occurrence of what the husband described as a practical joke (part of a pattern in the

family according to him) whereby the family when setting off from T. in Ireland for a pre-Christmas

visit to Lapland in 2007, drove off leaving the wife (who according to the husband was

characteristically late) in the house. This in itself was not directly a violent incident but it led to

the youngest child becoming very seriously upset by this practical joke when he perceived that

mother was to be left behind and did not understand the “joke”.

D. Another violent incident, (although not directly on the person of the wife), occurred as the

husband was going to bed on Christmas Eve, 2007 and the wife had stayed up after midnight

packing the Christmas stockings, which in this case amounted to pillowcases given the size of the

toys involved. With six children all believing in Santa Claus, perhaps for the last time, this was an

important act for both husband and wife to ensure that the children felt the love, attention and

appreciation symbolised by the Christmas stockings and were able to get the best enjoyment

thereof from their first traditional Christmas in Cayman. The husband became impatient with the

wife’s delay in going to bed as a result of her packing activities leading him to kick the Christmas

stockings and toys out of the room and into the corridor. The wife became very upset about this

and was most concerned that the spell of Christmas would be destroyed by the children waking

up and discovering this incident, and having the myth of Santa Claus either destroyed or badly

soured for them. In the outcome, it appears the children did not discover this incident.

48. A continuous feature of the wife’s written and other responses to the standard criticisms of her by the husband

leading to his demands, suggestions and entreaties that she must do better and reform, was a general acceptance by the

wife of her fault and intention to reform. If the continued letters from the husband and memoranda of self criticism by the

couple passing between them in 2008, when they sought to rectify difficulties in their marriage are anything to go by,

both wife and husband were singularly unsuccessful in this reforming-training process of the wife. The correspondence

and other documentation, together with the evidence of these confrontations display (outwardly at least) continuous

responses of the wife in the style of a victim of the husband and of docility and repentance in the face of continued

pattern of criticism. An example of this type of response which might lead to the conclusion that the wife was an absolute

victim of a strongly controlling husband, is the fact, that after the appalling incident triggered by the arrest of the wife

for speeding in the second car going to the airport, was the fact that the wife wrote to the husband apologising for the

incident saying that it was her fault notwithstanding that the ultimate cause arose from one of the children refusing to

leave the swimming pool on time, notwithstanding being told to do so.

49. This victim like, docile type of response from the wife was replaced to a significant degree, for the first time in the

marriage, when the wife took issue, verbally and in writing, with the husband’s plans to repeat the pattern of the family

holiday in August in the French hotel when the wife threatened not to go there, unless there was a nanny engaged,

queried whether the family should attend and stay there and also demanded that the husband would pay more attention

to the rest of the family (as before, he had spent “most of the time playing golf with the eldest son”). This was contested

by the husband, insofar as he said that he had only played nine holes at any stage with his son and this would not have

lasted any more than two hours or so. Strains on the victim-docile pattern of communication between husband and wife

also arose in relation to the organisation of the trip to Lapland with the children just before Christmas 2007 and, the wife

was left in a position where she was justified in having extreme doubts as to whether she might be going or not.

50. In 2007, the Christmas proceeded in traditional style in Cayman with some difficulty, but by that stage the wife was

increasingly reflecting on her lack of satisfaction with the relationship and, equally, the husband had begun to express a

desire for what could be described as a trial separation. The husband had arranged to bring the eldest son back to

England via Ireland to his secondary school at A., in early January. The intention was that the wife would remain in

Cayman while the husband attended to this and other business on the Irish side of the Atlantic. He had to make

arrangements for the administration or probate of his father’s estate, and he also had concerns about accommodation for

his mother and looking after the English property, which he had acquired close to the son’s school. He explains that as a

result of the death of his father in 2007, and difficulties with his mother’s accommodation, he had come under a great

deal of strain.

51. When the husband left in early January, communications had been poor between the parties, and afterwards they did

not resume the same frequent or effusive pattern as before. Instead, the husband made telephone calls to the children in

the Cayman’s and did not speak to the wife, and ultimately the husband in a very long and in ways heart rending letter,

informed the wife of his interest in obtaining a divorce. The relationship continued with the husband ultimately returning

and, indeed, having a number of holidays with the family and the children and on occasions with the wife alone where

good personal and sexual relations ensued between the wife and the husband, and in ways the responses of the wife

continued in the docile victim hood mode, but underlying the communications was a new assertiveness of the wife wishing

to change things. The couple returned to Ireland from the Cayman Islands in mid March so that the children could go back

to school.

52. I consider that crucially in this case there was a watershed in the relationship between the parties on the receipt by

the wife of the letter indicating an interest in divorce when she was alone with the five children in Cayman. When asked

by the court whether there was a taboo between the couple in relation to even mentioning the issue of divorce between

them beforehand, the husband readily conceded that there was such a taboo. The court may easily infer that the letter

mentioning divorce came as an absolute bombshell to the wife. The wife claimed in evidence that after this time she

became intent on protecting her situation by such legal methods as were appropriate and, securing her future for herself

and her children in the face of the divorce demand by her husband. She explains the subsequent elements of the same old

effusiveness and docility in her letters and memos with her husband (many of which had to do with reconciliation of the

couple and acceptance of blame mutually for their, (by now fraught) marriage), by saying that this was a hypocritical

course followed by her to keep matters on an even keel until she could protect her situation, but that she clearly had

decided herself to separate and take whatever steps she knew to “end the marriage”. She also explained the sometimes

very passionate and enthusiastic sexual intercourse and social encounters between herself and her husband up to the end

of April, and even thereafter, on the same basis and even suggested to the court that one such incident of sexual

intercourse was hypocritical when it occurred in June of 2008. (After the separation proceedings had issued).

53. The husband took issue with this version of events from the wife and asserted that, notwithstanding their difficulties

the couple were up to eight days prior to the issue of the proceedings, on the 30th April, 2008, in a normal marriage

which had its ups and downs, in the course of an active reconciliation process. He laid particular emphasis on the fact

that over the whole period of January, 2007 to May, 2008 the family had no less than eighteen holidays at considerable

expense, some of which were holidays where husband and wife spent an enjoyable time alone with each other. He

produced what is best described as a handwritten spreadsheet giving details of these holidays from his very well kept

records and, this spreadsheet was not challenged on behalf of the wife.

54. On or about the 30th April, 2008, when the husband was away (it appears in England), the wife invited another man

(hereinafter called “the other man”) to her table when out dining with her mother. They kissed almost immediately in the

restaurant, a friendship ensued which continued to the date of hearing where the wife, although not living with the other

man, assisted him with a significant sum of money for his business, apparently without expectation or hope of repayment

and where the wife employed various stratagems to conceal the continuation of this adulterous affair, notwithstanding

that it had been discovered and identified by the husband at an early stage as a result of his characteristic zeal, and no

doubt driven by what must have been a general and hurtful shock for him to discover this sudden turn of events which

had been uncharacteristic of his long faithful and loving wife. The affair with the other man continues up to the date of

the hearing. The coyness and lack of candour of the wife with the court when it enquired during the hearing as to

whether the affair with the other man continued, which was not justified by the uncontested facts subsequently

uncovered by the husband, has led the court to adopt a cautious approach to the wife’s evidence, and will, in drawing its

conclusions in this case, rely mostly on evidence corroborated by or supported by further documents or admitted facts.

55. Such an approach is necessary by reason of the stark contrast between the cases of the husband and wife and

credibility issues arising from the issue raised by the husband in his notice of motion of the 28th January, para. 1 already

referred to earlier in this judgment regarding the jurisdictional issues, insofar as he asserts that there was a normal

marriage and that the wife filed for judicial separation on the 8th May as a direct resulting of meeting the other man on

the 30th April, 2008, and becoming immediately and totally besotted with him. In this context it is important to revisit the

wife’s application for Caymanian status, as the husband placed emphasis on this application from the point of view of

attacking the wife’s credibility, in saying that she was asserting two conflicting claims in relation to ordinary residence and

had misrepresented the status of her residence to the Cayman authorities for the purpose of obtaining Caymanian status,

and that additionally she referred to her residence in Ireland as living “on the family estate”, whereas she referred to her

residence in the Cayman as in the “family home on Cayman”. I do not consider that such credibility doubts arise from the

application for Caymanian status by reason of the fact that, her residence in Ireland was, in fact, on the family estate,

which was a completely open and frank disclosure to the Caymanian authorities in relation to this aspect, and, in addition,

she disclosed her long residence in Ireland to them. Her obtaining Caymanian status was obtained primarily by her

residence entitlement and certificate available at the time, and also by reason of her husband’s long residence in Cayman

and his Caymanian status which, it must be said, are objectively genuine, but judged by his own particular standards

seeking to attack the credibility of the wife are ambivalent enough insofar as he did not spend a great deal of time in the

Cayman’s, especially in the twelve months leading up to the issue of separation proceedings in this case.

56. The parties still live as a general rule with their children under one roof at T., but there is no doubt that they are

living apart within the meaning of the 1996 Act. The court has continuously during the course of the hearing enquired

about the welfare of the children in such a situation, and is glad to have been continuously assured that the welfare of

the children is of concern to both parents, and that it is being cared for without the necessity of intervention by the

court and that expert professional assistance is availed of by the parents in relation to this aspect. The state of affairs in

relation to the children is to be welcomed, as it is the obligation of the court in the first instance whenever matrimonial

proceedings commence to make enquiries in relation to the welfare of children so that timely steps may be taken, even on

the initiative of the court to ensure that they are not unavoidably damaged by the litigation and process of separation

and/or divorce.

The Law

57. Section 2 of the Judicial Separation and Family Law Reform Act 1989, provides as follows:-

“2.—(1) An application by a spouse for a decree of judicial separation from the other spouse may be

made to the court having jurisdiction to hear and determine proceedings under Part III of this Act on

one or more of the following grounds:

( a ) that the respondent has committed adultery;

( b ) that the respondent has behaved in such a way that the applicant cannot reasonably be expected

to live with the respondent;

( c ) subject to subsection (2) of this section, that there has been desertion by the respondent of the

applicant for a continuous period of at least one year immediately preceding the date of the application;

( d ) subject to subsection (2) of this section, that the spouses have 3 lived apart from one another for

a continuous period of at least one year immediately preceding the date of the application and the

respondent consents to a decree being granted;

( e ) subject to subsection (2) of this section, that the spouses have lived apart from one another for a

continuous period of at least three years immediately preceding the date of the application;

( f ) that the marriage has broken down to the extent that the court is satisfied in all the circumstances

that a normal marital relationship has not existed between the spouses for a period of at least one year

immediately preceding the date of the application.”

58. Section 4 of the 1989 Act provides as follows:-

“4.—(1) Where the spouses have lived with each other for more than 1 year after it became known to

the applicant that the respondent had committed adultery the applicant shall not be entitled to rely on

that adultery for the purposes of section 2 (1) ( a ) although that adultery may be one of the factors

that the applicant may rely on for the purposes of section 2 (1) ( b ) together with other matters.

(2) Where the applicant alleges that the respondent has behaved in such a way that the applicant

cannot reasonably be expected to cohabit with him but the spouses have cohabited for a period or

periods after the date of the occurrence of the final incident relied on by the applicant and held by the

court to support his allegation, such cohabitation shall be disregarded in determining for the purpose of

section 2 (1) ( b ) of this Act whether the applicant cannot be reasonably expected to live with the

respondent if the length of the period or of those periods of cohabitation together was or were 6

months or less.”

59. The case T.F. v. Ireland, the Attorney General and M.F. [1991] 1 I.R. at p. 321 is helpful in relation to providing a

guide as to what a normal marital relationship involves in this jurisdiction. The judgment of Murphy J. in the High Court in

that case isolated two pertinent aspects which are well summarised in the head note of the report of his judgment as

follows:-

“7 …that the essential ingredients of a valid marriage and the elements which must continue to

exist to enable it to be described as a functioning marriage as opposed to one which, in the words

of s. 2, subs. 1(f) had “broken down” were difficult to define and would exist in varying degrees in

different marriages, but that those essential elements must include the physical capacity to

consummate the marriage and the creation of an emotional and psychological relationship

between the spouses, and

8. that while the word “break down” might be appropriate to describe a variety of conditions or

problems within marriage, the Oireachtas must be presumed to have intended a constitutional

meaning, so that “break down” must be limited in its application to a break down which involves

the loss of an essential ingredient to the extent as stated in subs. 1(f) that a normal marital

relationship had ceased to exist.

9. That it must be recognised that the consent of either party that the continuation of the

marriage was an essential ingredient thereof as the implacable opposition – however unreasonable

– of one or other of the spouses to its continuation must destroy the fundamental relationship.”

60. In considering this case I was conscious of the approach taken by Mr. McCarthy in his submissions highlighting the

fact that the latter two layers of the relationship as analysed by him and described in this judgment highlighted the lack

of parity of esteem, and equality which has been used by the courts as a critical standpoint to examine the adequacy of

provision in judicial separation and divorce cases after decisions in White v. White as followed by Irish cases such as the

Supreme Court judgment in T. v. T., and this approach which has been summarised in the Charman v. Charman (No.4)

judgment has “banishing discrimination” is a development which in statutory and judicially clarified law has emerged since

the judgment of the High Court and Supreme Court since T.F. v. Ireland and the Attorney General and M.F.. There is no

doubt that having regard to the manner in which the courts now approach provision for each spouse, having regard to

equality, or at least a departure from equality on the basis of justifiable reasons, might prompt the argument that the

continuation of a marriage such as that between the husband and wife in this case without the wife progressively

obtaining a paper title to a significant amount of the assets of the family, would indicate that the marriage was not a

normal marriage and that a new standard arises over time. The argument may be made that against the background of

the constitutional pledge to protect the institution of marriage is anomalous and discriminatory for dependent spouses to

have to wait for the intervention of the court in judicial separation or divorce to assert their right to equality and “banish

discrimination”. Having considered this view and weighed it in the light of Mr. McCarthy’s submissions, I find that

notwithstanding its logic it is itself contrary to a very fundamental aspect of a normal marriage which is the consent of

the parties to engage in cohabitation, characterised by continuous negotiation, co-existence and compromise, in their

widest possible definitions. This is not to say that if a spouse realising that they are giving more and more into a marriage

where there is no sign of the actual sharing of family wealth and resources, that they may not be justified in demanding

that such adjustments would take place in property owning which would reasonably justify their withdrawal of consent to

the marriage. Such an event, if followed through by clear indication of lack of consent for the requisite period of one year

prior to initiation of proceedings would as in many other situations, too numerous to envisage, lead to establishment of a

ground under s. 2(1)(f) of the Act of 1989. To take the other view initially posited by me would actually be undermining

marriage insofar as spouses could never really know where they stood at any particular time, and would lose the

opportunity to engage in a fundamental aspect of marriage, which is negotiation and compromise.

61. It is clear from the Act that the wife in this case cannot rely on her own adultery to ground her claim, nor does she

do so. However, the provisions of the Act in relation to adultery are helpful in relation to analysing the law in regard to

the treatment of violence as a ground justifying a claim that the applicant cannot reasonably be expected to live with the

respondent under s. 2(1)(b). In this context while s. 4 of the Act of 1989 does not allow of the old fashioned condonation

principle in relation to adultery, it allows for a fade factor to come into play under subs. (1) after one year, the adultery

has come to the knowledge of the applicant so that adultery may not be relied upon, but it does add the proviso that the

adultery may be one of the factors that the applicant may rely on for the purposes of s. 2(1)(b) together with “other

matters”. I consider that while the statute does not make specific provision for it, such a proviso may be applied to

occurrences of violence such as the 1998 occurrence, insofar as time has ruled them out as a direct ground for the

judicial separation, nevertheless they are to be taken into account as the occurrence of even one incident of violence

considerably breaks the seal of trust and confidence in the marriage, and this breakage can relapse with the occurrence

of another incident of violence or traumatic event which affects the manner in which the spouses are adversely affected

by them, may reasonably be expected to react.

Conclusions

62. Notwithstanding the fact that I accept that there were extensive and obvious elements of controller/victim

relationship between husband and wife in the marriage from before and during the marriage, that the wife consented to

such a relationship and she herself controlled it by what almost became a ritual of acceptance of guilt and purpose of

amendment so that she could humour her husband and encourage him to be in many respects the good father, provider

and family man that he was. I have seen the demeanour and presentation of the wife while giving her evidence, and

neither from that nor any of the evidence, was there any indication that the wife was psychologically adversely affected

by her apparent victimhood. If it were otherwise, my conclusions hereinafter following might well be different. Therefore,

the wife does not succeed on ground 21(b). I find that the occurrence of the letter from the husband raising divorce

when he had absented himself on what can be regarded as a trial separation from the Cayman leaving the wife on her

own in cramped conditions looking after five other children, coupled with the outbreak of a violent incident as described

on Christmas Eve was a triggering event, which set off the wife’s defences to consider radical ways of altering her

marriage and that certainly taking the period from the Lapland incident right through to the divorce letter, that the

respondent has behaved in such a way that the applicant could not reasonably be expected to cohabit with him so that

the criteria in 2(1)(b) is met.

63. I find that the earliest date at which one might possibly take the view that the consent of the wife to continue in the

controller/victim docility relationship was just before the holiday in the French hotel, in or around July, which does not

give the requisite period of one year for the lack of a normal marital relationship to set up the ground of 2(1)(f). In this

regard, I agree with Mr. Duncan’s submission. In any event, I do not think that the new assertiveness then exhibited

amounted to withdrawal of consent.

64. There was, and continues to be, an adulterous relationship between the wife and the other man, but this is not the

reason why the proceedings were initiated, as although there were attempts to reconcile and actions of reconciliation

between the parties after the triggering events in the period hereinbefore described the fundamental problems of the

marriage such as the controller/victim docility relationship and the lack of sharing of wealth and resources had not been

resolved. The question as to whether there was a rush to jurisdiction (which was never actively canvassed) is irrelevant

once the proofs are met under s. 2(1)(g).

65. Section 4, subs. (2) of the 1989 Act deals with the situation such as occurred in this case where the parties

continued to cohabit for a period of less than six months after the triggering event hereinbefore described where such

cohabitation does not disentitle the applicant from relying on s. 2(1)(b). I consider that within the category of

cohabitation envisaged by s. 4(2) is the type of cohabitation which was punctuated by efforts to reconcile sexual

relationships (however sincere or hypocritical on the part of the wife), or by other various indicia of a normal marriage.

66. The other events in the “final layer” of the relationship outside the six month period, while not qualifying as formal

proofs in themselves are nevertheless dark shadows brought into play again by events within the critical six months to

affect positively the reasonableness of the question in issue.