Neutral
Citation
Number: [2017] IECA 255
Finlay Geoghegan J.
Irvine J.
Hogan J.Appeal No. 2017 40
IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964, AND
IN THE MATTER OF THE
FAMILY
LAW ACT, 1981, AND
IN THE MATTER OF THE
FAMILY
LAW ACT, 1995, AND
IN THE MATTER OF THE
FAMILY
LAW (
DIVORCE)
ACT, 1996,
AND
IN THE MATTER OF THE
CIVIL
PARTNERSHIP AND
CERTAIN
RIGHTS AND OBLIGATIONS OF
COHABITANTS
ACT, 2010
IN THE MATTER OF THE
COURT
OF APPEAL ACT, 2014,
AND IN THE MATTER OF SECTION 38 OF THE
COURTS
OF JUSTICE ACT 1936, AND IN THE MATTER OF ORDER 86B OF THE RULES OF THE SUPERIOR
COURTS
M.W.
APPLICANT/RESPONDENT
RESPONDENT/APPELLANT
JUDGMENT
delivered
by Ms. Justice
Finlay
Geoghegan on the 2nd
day
of October 2017
1. This is a
consultative
case
stated of Abbott J. in the High
Court
pursuant to s. 38 of the
Courts
of Justice Act 1936 (as amended), in the hearing of an appeal by
D.C.
from
a
decision
of the
Circuit
Court
in respect of a
claim
brought by M.
W.
pursuant to the
Civil
Partnership and
Certain
Rights and Obligations of
Cohabitants
Act 2010 (“the 2010 Act”).
2. The
Circuit
Court
had
determined
that M.
W.
was
a qualified
co-habitant
within
the meaning of s. 172(5) of the 2010 Act and made orders in her
favour.
D.C.
appealed
from
that
decision
to the High
Court.
3. As appears
from
the
case
stated, the primary issue in the High
Court
is
whether
or not M.
W.
was
a qualified
co-habitant
for
the purposes of the 2010 Act in relation to the
claim
made. The High
Court
judge heard oral evidence and submissions
from
the parties. He has indicated in the
case
stated that he has reached
certain
conclusions;
also that he
would
take
D.C.’s
evidence “at its height”, but expressed an indicative view that M.
W.
was
a qualified
co-habitant
within
the meaning of the 2010 Act. Abbott J. nevertheless agreed to state a
case
to this
Court
with
the
following
questions:
Background
facts
4. The background
facts
which
are not in
dispute
and set out in the
case
stated and
which
explain the questions of law referred by the High
Court
judge to this
Court
for
determination
are in summary as
follows.
5. The parties are not and
were
never married to each other. They are the parents of two
children
who
were
dependent
at the time of the High
Court
hearing.
6. The relationship of the parties
dated
from
1996
with
what
the trial judge refers to as “a
few
spats
from
time to time”. The trial judge refers to a long relationship
with
a “history of
conflict
of expectation and ambition
from
the parties”. He
further
referred to a greater expectation and ambition of M.
W.
in relation to marriage preceded by engagement and a lesser
commitment
of
D.C.
to avoid engagement and marriage and joint ownership of a property ownership.
7. The
disputed
facts
which
have not been
finally
determined
by the trial judge relate to the period between
February,
2010 and
February,
2011. It
does
not appear to be in
dispute
that the parties
were
living together
with
the two
children
in a residence up to
February,
2010. The
contention
of
D.C.
is that the relationship ended in
February,
2010
when
M.
W.
left the shared property and resided
firstly
in a
women’s
refuge and then subsequently at a rented premises until June, 2010. M.
W.
contends
that the period
during
which
she left the shared residence and lived separate
from
D.C.
was
four
weeks
from
May, 2010 to June, 2010.
8. Both appear to agree that they resumed living in the same residence in June 2010 and
did
so until
February,
2011. There may be a
dispute
as to the position after the
date,
but it is not relevant to the legal questions
for
decision
by this
Court.
The 2010 Act
9. The purpose of the 2010 Act as appears
from
its long title is to provide
for
the registration of
civil
partners and the
consequences
of that registration and to provide
for
the rights and obligations of
cohabitants
and
connected
matters.
10. Part 15 relates to
cohabitants
and a “
cohabitant”
has the meaning assigned to it by s. 172. That section is
central
to the
case
stated and provides:
11. As appears, a
cohabitant
is
defined
for
the purposes of Part 15 of the 2010 Act in section 172(1) and the
Court
is obliged to take into account all the
circumstances
of the relationship and in particular to have regard to the matters specified in s. 172(2) in
deciding
whether
or not a person is a
cohabitant.
12. However, s.173 only permits a qualified
cohabitant
to apply to the
Court
for
relief pursuant to the Act. Section 173(1) and (2) provide:
13. Part 15 of the 2010 Act
came
into
force
on 1st January, 2011. The
claim
made by M.
W.
is on the basis that the relationship of
cohabitation
with
D.C.
ended in
February,
2011 after the
commencement
of the Act. Section 206 provides:
14. Section 195 provides a two-year time limit
for
the
commencement
of proceedings “save in exceptional
circumstances”
from
“the time that the relationship between the
cohabitants
ends,
whether
through
death
or otherwise.” No issue arises in relation to this particular two year period.
15. It
would
appear that the
claim
made by M.
W.
is upon the basis of a relationship
which
ended in
February,
2011 (or possibly later, but still in 2011). She is limited to making that
claim
by reason of s.206 and the
commencement
date
of 1st January 2011 in respect of the 2010 Act. The
first
and primary legal question relates to the proper interpretation of s. 172(5) by reason of the
fact
that the parties lived separate and apart
for
a period in 2010. It matters not
for
the legal question of interpretation
whether
this
was
a period of
four
weeks
or longer, as
contended
by
D.C.
16. The
first
interpretive issue, having regard to the submissions made, is
whether
the two-year period referred to in s. 172(5) is a single period of two years immediately prior to the ending of the relationship in respect of
which
the
claim
is made or
whether
the period of two years may be made up of periods aggregating or amounting to two years immediately prior to the
date
upon
which
the relationship ended.
17. The applicable interpretation principles
were
not in
dispute
between the parties. The
Court
was
referred to the
well
known quotation by Blayney J. in Howard v.
Commissioners
of Public
Works
[1994] 1 I.R. 101 at p. 151
from
Lord Blackburn in Direct United States
Cable
Company
v. Anglo American Telegraph
Company
(1877) 2 App
Cas
394:
“The
cardinal
rule
for
the
construction
of Acts of Parliament is that they should be
construed
according to the intention expressed in the Acts themselves. If the
words
of the statute are themselves precise and unambiguous, then no more
can
be necessary than to expound those
words
in their ordinary and natural sense. The
words
themselves alone
do
in such a
case
best
declare
the intention of the lawgiver.”
18. It
was
also agreed that the
court
must
construe
the Act in accordance
with
the requirements of the Interpretation Act 2005 (“the 2005 Act”).
Counsel
for
M.
W.
relied in particular upon s. 18(a) of the 2005 Act
which
provides:
“18.—The
following
provisions apply to the
construction
of an enactment:
(a) Singular and plural. A
word
importing the singular shall be read as also importing the plural, and a
word
importing the plural shall be read as also importing the singular;”
19.
Whilst
counsel
for
D.C.
accepted the above provision applies, he
correctly
submitted that it
was
subject to s. 4 of the 2005 Act
which
provides:
His submission is that the
wording
of s. 172(5) - in particular by the use of the phrase “immediately before the time that the relationship ended” - expresses a
contrary
intention to the section being
construed
as permitting the two-year period to be made up of a number of periods
which
aggregate two years.
Further,
as
was
pointed out, even if one replaces the
word
“period”
with
its plural “periods” the ordinary and natural meaning having regard to the earlier phrase “immediately…” is of multiple periods, each of
which
must be of two years or more.
20.
Counsel
for
M.
W.
correctly
relied on a
further
principle of interpretation that the
words
used must be
considered
in their legal
context
having regard to the entirety of s.172 and the other provisions in Part 15 of the 2015 Act. He
correctly
submits that s.172(1)
defines
a
cohabitant
and the
Court
should have regard to that
definition
and the matters to
which
it is referred in s.172(2)
when
interpreting s.172(5) and (6).
21. In enacting s.172(5) the legislature
clearly
intended
first
(subject to the exceptions in sub-s.(6)) that a person must be a
cohabitant
of the other person (
where
there is a
dependent
child)
for
a period of 2 years or more in order to be a qualified
cohabitant.
However, by use of the phrase “immediately before the time that the relationship ended”, the Oireachtas has also specified when such person must have been a
cohabitant
for
2 years or more.
22.
Counsel
for
M.
W.
made a number of submissions in reliance upon the purpose of the Act to give a
cohabitant
as
defined
in s. 172(1) a right to apply to the
Court
for
an order under s. 173, albeit acknowledging that the Oireachtas intended that the right only be given to a
cohabitant
in a relationship
for
a specified period of time. He
drew
to the
Court’s
attention the
consequences
of
what
is termed the “strict interpretation”
for
a
cohabitant
who
may have lived in a relationship
which
qualifies him or her as a
cohabitant
within
the meaning of s. 172(1)
for
a long period but
where
there is a break in the relationship and a resumption of the relationship before a
final
termination.
23. I
do
not accept that the
construction
of s. 172(5) in accordance
with
the ordinary meaning of the
words
used as requiring a single period of two years immediately before the ending of the relationship is
contrary
to the purpose or overall scheme of Part 15 of the 2010 Act. It must be recalled that s. 195 permits the institution of proceedings
within
two years of the time
when
the relationship in respect of
which
the
claim
is made ended. Hence, if there is a longstanding relationship
which
ends on, say, 1st June, 2017 in the sense that a
court
considers
the relationship to have
ceased
such that the parties are not
cohabitants
of each other
within
s.172, but the parties,
following
a break of, say, three months, resume a relationship on 1st September, 2017 and that resumed relationship only lasts
for,
say, one year, then either
cohabitant
will
be able to make a
claim
based upon the long standing relationship
which
ended on 1st June, 2017 on any
date
prior to 1st June, 2019 (and possibly even after that
date,
as s. 195 permits of an extension of time “in exceptional
circumstances”).
24. I recognise that on the
facts
of the
case
before the High
Court
judge it
was
not open to M.
W.
to make a
claim
in respect of the longstanding relationship of
cohabitation
upon the basis that it ended in 2010. This particular
consequence
is, however, by reason of the
commencement
of the 2010 Act on 1 January 2011 and the effect of s. 206 of that Act: it
does
not otherwise alter the proper interpretation of s. 172(5).
25. My
conclusion
is that the ordinary and natural meaning of the
words
used by the Oireachtas in s. 172(5)(a) of the 2010 Act
when
viewed in the
context
of the entirety of that section and Part 15 of the 2010 Act is that the relevant period is a single period of two years immediately before the time that the relationship ended.
26. This interpretation is also
consistent
with
the
different
words
used by the Oireachtas in the immediately subsequent subsection, namely, s. 172(6)(b)
where,
admittedly having regard to similar
words
in the
divorce
legislation, the relevant time is expressed to be “a period or periods of at least
four
years
during
the previous
five
years”.
27. As the answer to the substance of the
first
question of law put by the High
Court
judge is in the affirmative, it is necessary to
consider
the question of law raised by his second question. In this the judge asks
whether
“… a
court
[
can]
overlook periods of separation in a relationship
which
has
ceased
and recommenced between the parties?”
28. It is necessary to emphasise that all
findings
of
fact
and questions of
fact
are matters
for
the High
Court
judge.
With
respect, it is not entirely
clear
what
legal question he requires this
Court
to answer
for
the purpose of
deciding
the appeal before him having regard, in particular, to
what
is stated by him in paras. 14(i) and 15 of the
Case
Stated in relation to the alleged
continuation
of the relationship of
cohabitation
in 2010. That remains exclusively a matter
for
the High
Court
judge. It appears that
what
the High
Court
judge in substance is asking this
Court
is
what
legal question he is required to
decide
upon the
facts
before him in relation to the two-year period immediately preceding the ending of the relationship in respect of
which
the
claim
is made. In this instance, that is the two-year period immediately before
February,
2011. Section 172(5) requires the High
Court
judge to
determine
whether
on the
facts
before him M.
W.
was
living
with
D.C.
as a
couple
during
the entirety of the two-year period preceding the termination of the relationship in
February,
2011.
29. The
concept
of “living
with
the other adult as a
couple”
or living “together as a
couple”
as stated in s. 172(1) is a legal
concept
for
the purposes of s. 172. There
was
considerable
debate
in the submissions before this
Court
as to
whether
the
concept
of living together as a
couple
for
the purposes of s. 172 required both adults to live physically in the same shared residence at all times. Examples
were
given of persons in an intimate and
committed
relationship living together as a
couple
and holding themselves out as a
couple
but
where
either
work
demands
of one or other or ill health and hospitalisation require the
couples
to physically live in
different
places or even
different
countries
for
periods of time. I
conclude
that the legal
concept
of living together as a
couple
for
the purposes of s. 172
does
not require two persons to live physically at all times in the same shared premises. Hence, notwithstanding that a
couple
may not be physically living
day
by
day
in the same residence,
during
the two-year period immediately prior to the end of the relationship s. 172 envisages that a
court
may
decide
on all the relevant
facts
that they, nonetheless
continued
to live together as a
couple
during
that period.
30. The
definition
of
cohabitant
in s. 172(1) is “one of two adults …
who
live together as a
couple
in an intimate and
committed
relationship…” Subsection (5) in
defining
a “qualified
cohabitant”
appears to start
with
the requirement that the person is a
cohabitant
as it must be “an adult
who
was
in a relationship of
cohabitation
with
another adult” and then in relation to the two-year period at issue requires that the person “
was
living
with
the other adult as a
couple”.
Notwithstanding the slight
difference
in
wording
it
does
not appear to me that the Oireachtas intended anything other than that the person
who
seeks to be a qualified
cohabitant
was
a
cohabitant
of that other person
within
the meaning of s. 172(1)
during
the two-year period immediately preceding the termination of the relationship. The reason
for
which
I have
formed
that view is that the
claim
is being made in respect of a relationship of
cohabitation
alleged to have ended on a specified
date.
Accordingly, the relationship of
cohabitation
must
continue
up to the
date
upon
which
it is alleged to have ended. There
cannot
be a relationship of
cohabitation
unless there are two
cohabitants.
31. Accordingly, simply put,
what
a
court
must
determine
is
whether
or not
during
the two years immediately before the time at
which
the relationship of
cohabitation
is
claimed
to have ended the applicant
was
a
cohabitant
of the other adult
within
the meaning of s. 172 of the 2010 Act
during
the entirety of that two-year period.
32. By the third question the High
Court
judge asks
whether
it matters that the relationship
ceased
between the parties prior to the Act of 2010 and recommenced prior to the Act of 2010. The substance of this question must be answered by reference to s. 206 of the Act of 2010. As I have already pointed out, the 2010 Act only permits an application to be made in respect of a relationship
which
ends after the
commencement
of the section
which
was
the 1st January, 2011. The question as to
whether
or not an applicant is a qualified
cohabitant
for
the purposes of s. 172
can
only be
determined
with
respect to a relationship of
cohabitation
which
ended after 1st January, 2011. Of
course,
in assessing this question the
Court
may also look at the time prior to that
date
during
which
the two persons lived as a
couple
or
were
cohabitants
for
the purpose of
deciding
whether
they are qualified
cohabitants
within
the meaning of s. 172(5), provided again that the relationship ended after 1st January 2011.
Conclusion
33. I propose that the questions put by the High
Court
judge be answered as
followed: