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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> L.B. v Ireland and Ors [2015] IESC 1 (15 January 2015) URL: http://www.bailii.org/ie/cases/IESC/2015/S1.html Cite as: [2015] IESC 1 |
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Judgment
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THE SUPREME COURT [Appeal Nos: 34/2013 & 76/2013] Clarke J. Laffoy J. Charleton J.
L. B. Plaintiff/Appellant and
Ireland, The Attorney General and P. B. Defendants/Respondents Judgment of Mr. Justice Clarke delivered on the 15th day of January, 2015
2. The History of Proceedings 2.2 Later Mr. B brought proceedings in the Circuit Court seeking a decree of divorce and other ancillary reliefs. The Circuit Court, amongst other things, ordered that the family home be sold with 35% of the net proceeds to go to Mr. B and the balance to Ms. B. In addition a pension adjustment order in respect of 20% of Mr. B's pension was made in favour of Ms. B. For reasons which were not clear to the High Court judge and are not clear to me, the original judicial separation proceedings order relating to the sale of the family home and a 50/50 division, was never implemented. 2.3 The divorce proceedings were appealed to the High Court and determined on appeal by Finlay Geoghegan J. on the 10th June, 2004. The High Court upheld the decision of the Circuit Court in substance but made some changes to the precise details of the relevant property and pension adjustment orders. The property was directed to be divided as to 40% to Mr. B and the pension adjustment order in favour of Ms. B was changed to 25%. Ultimately, the detail of those orders is no longer of any relevance to the issues which are before this Court. What is relevant is that Mr. B was subject to orders both in respect of his lands and his pension which had the effect of transferring a part of his property interest in both of those items to his wife. 2.4 Mr. B asserts in these proceedings that his estranged wife had no direct property interest in either of those items on the basis that he had provided all of the funds which were used to acquire them. As this appeal arises out of an application to dismiss as being bound to fail, it follows that the court must, of course, accept that Mr. B will be able to establish that fact at trial. For the purposes of the argument on this appeal, therefore, I must assume that the relevant assets were the sole property of Mr. B and that he was required, on foot of the property and pension adjustment orders to which reference has already been made, to transfer the relevant portions of those assets to Ms. B. He is, of course, at a loss as a result of having so to do. 2.5 The real issue which arises is, however, as to whether there is any basis on which it is arguable that he can claim for that loss against the State. Before turning to that issue, I should briefly note two matters which occurred at the hearing of the appeal before this Court. 2.6 First, Mr. B (who appeared in person) submitted that the appeal should be heard before a Court consisting of five judges on the basis that he wished the court to review a previous decision made by this Court in T.F. v. Ireland [1995] 2.7 Finally, it should be noted that, at the commencement of the hearing, Counsel appeared on behalf of Ms. B to indicate to the court that Ms. B did not require to participate in the hearing. It is then necessary to return to a discussion of the arguability of the claim made by Mr. B in these proceedings. 3 Discussion 3.2 Second, Mr. B addressed the jurisprudence of both this Court and the High Court which establishes that the appropriation of property by the State in the absence of compensation will normally amount to a breach of the property rights of the individual from whom the appropriation is taken. At the level of general principle there can be little doubt but that it would require very extreme circumstances for it to be constitutionally permissible for the State to take property without compensation. See for example Buckley v. Attorney General [1950] I.R. 67 and E.S.B. v. Gormley [1985] I.R. 129. Again, I did not understand counsel for the State to disagree. 3.3 Mr. B is, therefore, correct up to a point. He has property rights. Those property rights cannot be interfered with except where it is constitutionally permissible so to do and, ordinarily, if his property rights are to be interfered with by the appropriation of his property by the State, it will not be possible so to do in a constitutional fashion without the payment of compensation. 3.4 But, as the trial judge correctly pointed out, to look at the issues which arise in this case without also having regard to the constitutional provisions concerning divorce is to ignore a vital, and on the facts of this case highly relevant, aspect of the constitutional framework. As the trial judge noted, in In Re
i at the date of the institution of the proceedings, the spouses have lived part from one another for a period of, or periods amounting to, at least four years during the previous five years, ii there is no reasonable prospect of a reconciliation between the spouses, iii such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and iv any further conditions prescribed by law are complied with." 3.6 If the argument put forward before this Court by Mr. B is correct, then it would follow that the State itself would have, in substance, to bear the burden of making proper provision under the Constitution for all divorced spouses, and, indeed, although not relevant to this case, for the children and other persons specified in 3.7 As noted by MacMenamin J. in Mr. B's previous proceedings and as reiterated by the trial judge in this case, the requirement for proper provision is not merely permitted by the Constitution but is required by the Constitution. The Constitution itself, therefore, requires Mr. B to make proper provision if it is appropriate in the circumstances of his case. Whether that be so and to what degree is for the courts to decide. To the extent that the requirement to make such proper provision may interfere with Mr. B's property rights then the making of that proper provision, and that interference with his property rights, is expressly required by the Constitution. In those circumstances it seems to me to be fundamentally misconceived to suggest that the making of a property adjustment order amounts to an appropriation by the State of Mr. B's property. Rather, it amounts to a court complying with the constitutional mandate given to the court to ensure that proper provision was made for Ms. B. 3.8 That analysis would, in itself, be sufficient to uphold the judgment of the trial judge and dismiss the appeal. However, in deference to the detailed arguments advanced by Mr. B concerning the separation of powers, the role of the courts and the role of the Oireachtas, I propose to touch briefly on those questions before concluding. 4 The Separation of Powers 4.2 However, it is clear that neither of those principles are breached by the regime which has been put in place in this case. The way in which, in the ordinary way, the respective roles of the Oireachtas and the courts, in determining the rights and obligations of individuals or bodies, is played out is that the Oireachtas makes the law and the courts apply that law to the facts of any individual case. There is nothing either surprising or controversial in such a regime. It is, of course, also the case that the courts can play a role in the evolution of the common law within the bounds of what is constitutionally permissible (see my judgment in M.R. and D.R. & ors v. An tArd Chláraitheoir & ors [2014] IESC 60), although nothing turns on that question on the facts of this case. Furthermore, it is also, of course, the case that the courts play an important role in scrutinising legislation for consistency with the Constitution. Indeed, that is just what the courts did in relation to the 1996 Act in the previous proceedings brought by Mr. B. I will return briefly to that point at the end of this judgment. 4.3 Mr. B asserts that a court does not have any jurisdiction (inherent or otherwise) to vary the ownership of the beneficial interest in property. On that basis it is said that the courts, in making property adjustment orders, exceed their constitutional powers. However, it is the Constitution itself which places a duty on the courts to ensure that proper provision is made in the context of divorce. Therefore, the Constitution itself requires the courts, in an appropriate case and in the context of divorce, to interfere with the property rights of a spouse to the extent that it may be necessary to ensure that there is proper provision for the other spouse in accordance with the terms of 4.4 The other leg of Mr. B's complaint is that the Oireachtas has interfered in the proper role of the courts through specifying the matters which are to be taken into account by the court in dealing with the consequences of a successful application for divorce. This raises one of the issues which seemed to me to be at the heart of Mr. B's overall complaint. Mr. B has, in would appear, always felt that the blame for the breakdown of his marriage was to be laid squarely on his wife's side. It would be wholly inappropriate for me to make any comment on whether that belief is correct. In the course of his submissions, Mr. B drew attention to the decision of this Court (given by Hamilton C.J.) in T.F. v. Ireland in which the judicial separation regime was under consideration. Attention was, in particular, drawn to a passage from the judgment at p. 375 which notes that a party who wished to withdraw from a marriage "for selfish or irrational reasons" was still entitled to obtain a decree of judicial separation. A similar regime applies in respect of divorce under the 1996 Act provided that the criteria for separation are met. In that sense our divorce (and, indeed, judicial separation) regime may be said to be "no fault". In deciding whether to grant a decree of divorce or judicial separation the court is not concerned with determining whether, and if so to what extent, fault for the breakdown of the marriage lies on one or other side. The granting of a decree of judicial separation or divorce simply amounts to an acknowledgement that the marriage concerned is at an end for whatever reason. 4.5 It is not, however, the case, as Mr. B suggested, that the court is precluded from placing some reliance on the conduct of the parties in determining the level of proper provision to be made. The overall statutory provisions in respect of the various forms of financial and property orders which can be made under the 1996 Act is to be found in s.20 of that Act. It is important to note that s.20( 4.6 While the granting of a decree of divorce is, therefore, no fault, the provision for financial orders can take into account conduct if the nature of that conduct is sufficiently serious that the court would consider it unjust to disregard it. It is not, therefore, appropriate to characterise the financial adjustments specified by the legislation as operating solely on a no fault basis. The justice of the case is part of the court's consideration. 4.7 In addition, the Oireachtas has not purported to interfere in any way with the role of the court in either assessing such conduct or in determining whether any conduct established is sufficiently serious to warrant it being taken into account to the extent of leading to a change in the financial orders which might otherwise be made. The Oireachtas has left it entirely up to the court to decide whether conduct is such that it would be unjust to disregard it. There is just no basis, therefore, for Mr. B's assertion that the Oireachtas has, in that regard, in any way interfered with the constitutional remit of the courts. The remainder of the provisions of s.20(2) of the 1996 Act are simply concerned with specifying the kind of common sense matters which any court would have to take into account in deciding on the relative abilities of the spouses to make financial provision. Those provisions are also, as has already been pointed out, specified as being without prejudice to the general requirement found in subsection ( 4.8 Two final points under this heading should be made. First, and at a very general level, it is the case that any law may restrict the scope of a court's inquiry in any proceedings. Courts are not at large. Courts are obliged to apply the law. Subject to any law being consistent with the Constitution, a court is bound by its provisions just as much as anyone else and the provisions of a constitutional law will necessarily, in very many cases, reduce the scope of the court's inquiry in proceedings to which that law relates. 4.9 For example, if a constitutionally permissible piece of legislation creates an absolute criminal offence (and there is ample authority for the proposition that such offences can, subject to certain limitations, be created) it necessarily follows that a criminal trial involving such an offence will not involve the court in assessing the intent or extent of knowledge or awareness of the accused. The law will have narrowed the scope of the court's inquiry by excluding such matters. But that is what law does. The suggestion that a law which narrows the scope of a court's inquiry involves an impermissible interference by the Oireachtas in the court's role is simply wrong. It is inherent in the law making power of the Oireachtas, which is expressly conferred by the Constitution, that laws will necessarily limit the scope of the court's inquiry in cases to which the law in question applies. If the law does so in a manner which is constitutionally impermissible then the courts can, of course, invalidate that law by declaring it to be inconsistent with the Constitution. However, provided it be valid under the Constitution, such law, duly enacted by the Oireachtas, may limit the scope of the court's inquiry. 4.10 I then turn to the specific provisions of the 1996 Act which were relied on to make the property and pension adjustment orders in Mr. B's case. I have already dealt with what those provisions say and why same do not, in any way, interfere with the court's proper role in divorce proceedings under 4. 4.12 To rule otherwise would be to countenance a situation where parties could simply litigate and relitigate the same points ad infinitum. Such a situation would not be consistent with any principles of reasonable constitutional certainty. It must be recalled that the constitutionality of the 1996 Act was upheld, in a case brought by Mr. B himself, in proceedings which were finally determined by this Court just over two years before these proceedings were commenced. No legitimate basis, let alone extraordinary circumstances, has been put forward to suggest that it would be appropriate or permissible to allow the same issues to be relitigated again. 4.13 For those reasons I am also satisfied that Hogan J. was correct in adding to his judgment an addendum to the effect that he would have also been prepared to dismiss the proceedings as being in breach of the principle of res judicata if that were necessary. The substance of Mr. B's case is that his constitutional property rights were interfered with by property adjustment orders made under the 1996 Act. He has already tried, and failed, to challenge the constitutionality of the 1996 Act on precisely the grounds that it fails to vindicate his property rights. The case which he now makes can only be distinguished from the case which he made in those previous proceedings if 5 Conclusions 5.2 It would be wholly inappropriate, in addition, to allow Mr. B to commence, within just over two years of having lost a challenge to the constitutionality of the relevant provisions of the 1996 Act, a fresh constitutional action whose substance involves an attempt to cause the court to revisit constitutional issues so recently decided in proceedings in which he was, himself, a party. If, and to the extent that, it may be possible to revisit constitutional issues notwithstanding a previous decision of this Court, that facility does not arise in the circumstances of this case where the same issues have so recently been determined in litigation involving the same party. 5.3 I would, therefore, dismiss the appeal and affirm the order of the trial judge
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