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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> T. (D.) v. L. (F.) & Anor [2003] IESC 59 (26 November 2003) URL: https://www.bailii.org/ie/cases/IESC/2003/59.html Cite as: [2004] 1 ILRM 509, [2003] IESC 59 |
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Keane C.J.
Denham
J.
Murray J.
Hardiman J.
Geoghegan J.
29 & 130/02
BETWEEN
APPLICANT / RESPONDENT
RESPONDENT / APPELLANT
NOTICE PARTY
JUDGMENT delivered
the 26th
day
of November 2003, by Keane
C.J.
[Nem
Diss]
Until the coming
into
force
of the
Constitution
in 1937, the principles of private international law applied by the
courts
in Ireland included the rule known as the "
dependant
domicile"
of a
wife.
This meant, in effect, that in
cases
where
the rights of parties
fell
to be
determined
in accordance
with
the principles of private international law and, in particular, by a
determination
as to
where
one or both of the parties
was
domiciled
at a particular time, the
domicile
of a
wife
was
regarded,
for
all such purposes, as being the same as the
domicile
of her husband. However, in
C.M.
–v- T.M. [1991] ILRM 268, the High
Court
(Barr J.) held that the rule in question
was
inconsistent
with
the provisions of the
Constitution
and had not survived its enactment. That statement of the law
was
upheld by this
court
in
W.
–v-
W.
[1993] 2 IR 476.
So far
as the recognition of
decrees
of
divorce
granted by
courts
of a
foreign
jurisdiction
was
concerned,
the Irish
courts
applied the principle of private international law that such a
divorce
would
be recognised if it
was
granted by the
court
of a jurisdiction in
which
both parties
where
domiciled.
The result
was
that, until the
clarification
of the law in
C.M.
–v- T.M., a
divorce
granted by a
court
in a jurisdiction
where
the husband
was
domiciled
would
be afforded recognition because that
was
also treated as the
domicile
of his
wife.
Section 5(1) of The Domicile
and Recognition of
Foreign
Divorces
Act, 1986, (
which
did
not apply to the
divorce
at issue in
C.M
–v- T.M) provided that
"For
the rule of law that a
divorce
is recognised if granted in a
country
![]()
where
both spouses are
domiciled,
there is hereby substituted a rule that a
divorce
shall be recognised if granted in the
country
![]()
where
either spouse is
domiciled."
In C.McG.
–v-
D.W.
& Anor [2000] 1 IR 96, it
was
held by the High
Court
(M
cGuinness
J.) that,
where
the
decree
of a
foreign
court
was
granted prior to the
coming
into
force
of s. 5(1) of the 1986 Act, the issue as to the recognition of a
foreign
divorce
was
still governed by the
common
law rules of private international law. The learned judge in that
case
held that it
was
open to the Irish
courts
in the
case
of
foreign
divorces
granted before the 2nd October, 1986 to modify,
where
necessary, the recognition rules based on the
common
domicile
of spouses. She
was
satisfied that, having regard to the relevant provisions of the
Family
Law (
Divorce)
Act, 1996 and the
Family
Law Act, 1995, the
courts
should adopt a policy of extending recognition to
decrees
of
foreign
courts
where
either of the spouses
was
ordinarily resident in the
foreign
jurisdiction
for
a period of one year prior to the institution of the relevant proceedings.
The applicant and the respondent in the present proceedings (hereafter respectively "the wife"
and "the husband") are Irish
citizens
who
were
married in Ireland on the 30th August, 1980. In the year 1988, they emigrated to the Netherlands
with
their three
children
and lived there until 1992. At that point,
difficulties
had
developed
in the marriage and, in
circumstances
which
were
to some extent the subject of
dispute,
the
wife
returned to Ireland in that year
with
the
children.
The
following
year, she instituted
divorce
proceedings in the Netherlands in
which
she also sought an order
for
payment of interim maintenance. An order in her
favour
for
the making of interim maintenance payments
was
made by the
Dutch
court
in
February
1994, but thereafter she
did
not pursue the application
for
a
divorce.
On the 2nd March, 1994, however, the husband instituted
divorce
proceedings in the Netherlands and a
decree
of
divorce
was
granted by the
Dutch
court
on 12th September, 1994.
On the 6th July, 2000, proceedings were
instituted by the
wife
in the High
Court
claiming
a
decree
of judicial separation and
certain
ancillary reliefs. An order
was
made by
consent
that
"a preliminary issue be tried herein the issue being 'whether
the [husband] is or is not entitled to a
declaration
that the validity of a
divorce
obtained on the 13th
day
of July 1994 under the
civil
law of the Netherlands is or is not entitled to recognition in this State pursuant to the
Family
Law Act, 1995, s. 29(1)(
d)
and / or (e)'."
(The reference to adivorce
having been obtained on the 13th July, 1994 is an error: as already noted, the
divorce
![]()
was
not granted until the 12th September, 1994.)
The order also provided for
the joining of the Attorney General as a Notice Party in the proceedings.
The preliminary issue was
heard by Morris P. in a trial
which
lasted
five
days
and in
which
oral evidence
was
given on behalf of the husband and the
wife.
It is
clear
from
the transcript and the reserved judgment
delivered
by the learned President on the 23rd November, 2001 that the
case
advanced on behalf of the husband had two limbs. The
first
was
that, at the time the
divorce
proceedings
were
instituted in the
Dutch
courts,
the husband had acquired a
domicile
of
choice
in the Netherlands and that, accordingly, the
divorce
granted by the
Dutch
court
was
entitled to recognition in this jurisdiction. The second limb
was
that, if he had not acquired a
domicile
of
choice,
the
court
should apply the modified rule of private international law adopted by the High
Court
in M
cG.
–v-
W.
in
which
case,
since it
was
accepted that he had been ordinarily resident in the Netherlands
for
a period in excess of one year at the time the proceedings
were
instituted, the
decree
granted by the
Dutch
court
was
entitled to recognition on that basis.
The learned President, having dealt
with
the
facts
and
what
he
considered
to be the applicable principles in his judgment, rejected both limbs of the husband's
case
and, accordingly,
determined
that the
divorce
granted by the
Dutch
court
was
not entitled to recognition in this jurisdiction. A notice of appeal
was
served on behalf of the husband, but in the
written
submissions lodged on his behalf, it
was
made
clear
that the appeal against that part of the judgment
which
rejected the alternative
case
on behalf of the husband that the modified rule adopted in M
cG.
–v-
W.
should be applied
was
not now being pursued. In those
circumstances,
the Notice Party took no
further
part in the hearing of the appeal. This
court,
accordingly, at this stage is solely
concerned
with
the issue as to
whether
the husband
was
at the relevant time
domiciled
in the Netherlands
with
the result that the
divorce
granted by the
Dutch
court
should be recognised by the High
Court.
It is now necessary to consider
the
facts
in greater
detail.
The husband is a qualified
civil
engineer and accountant. In 1987, he
was
employed in Ireland by a leading
firm
of
chartered
accountants. The
wife
had been employed as a public relations officer in a large organisation, but had given up that position
with
the arrival of the
children.
In 1987, the husband
was
offered a position
with
the
Dutch
subsidiary of a major Irish
company.
This
was,
of
course,
at a time
when
the economic outlook in Ireland
was
bleak. There
were
also tax advantages in moving to the Netherlands. The parties
were
agreed in the
circumstances
that the move to the Netherlands
was
in the interest of themselves and their
children.
The applicant
described
the
contract
with
his new employers as "open-ended", although it
was
envisaged that it
would
last
for
at least three to
five
years. The
decision
having been made to move to the Netherlands, the
family
home in Ireland
was
sold and the husband resigned
from
the
clubs
of
which
he
was
a member in Ireland.
The evidence of both husband and wife
was
that they adjusted
well
to living in the Netherlands. Both of them learned
Dutch
and their
children
went
to school in the Netherlands. However,
difficulties
developed
in the marriage and, as already noted, the
wife
returned to Ireland in 1992
with
the
children.
The husband gave evidence that he
was
opposed to her
decision
to move back to Ireland
with
the
children,
but that
when
this happened in August 1992, he reluctantly accepted that his marriage
was
at an end. He also gave evidence, however, that prior to her
departure,
his
wife
had suggested that he should talk to his employers about the possibility of his obtaining a job
with
the Irish
company
in Ireland. He said in evidence that the two jobs
which
were
suggested as being available
were
of no interest to him.
This version of events was
disputed
in evidence by the
wife
who
said that her understanding at the time the Irish jobs
were
on offer
was
that her husband
was
also anxious to return to Ireland and that she had gone to Ireland
with
the
children
in order to put in place arrangements
for
the return of the entire
family.
She said that
during
that period she had
found
schools
for
the
children.
She agreed that,
when
her husband
was
given the
full
terms of the positions available to him in Ireland, he
was
very unhappy
with
them.
It is not, however, in dispute
that
from
August 1992 the
wife
and
children
were
living in
Dublin
and the husband
was
also visiting them
fairly
regularly and spent two
weeks
at
Christmas
with
them. Nor is it in
dispute
that at that time – i.e. the
Christmas
/ New Year period of 1992 / 1993 – they both accepted that the marriage had broken
down
and that there should be a separation agreement.
While,
for
the purposes of this judgment, it is unnecessary to go into any
detail,
the arrangements
for
a separation agreement
did
not go smoothly and this led to the
decision
of the
wife
to institute the proceedings in the Netherlands
with
a view to getting an order
for
the payment of maintenance by the
Dutch
court.
The husband gave evidence that in January 1994 he was
"headhunted" by a large
civil
engineering
firm
in this jurisdiction. He said that he initially turned
down
the offer, but that they
were
unwilling to accept his refusal and that he had
further
discussions
with
their representative at an international rugby match in
Dublin
some time later. At the end of April, he agreed to take the job and he returned permanently to Ireland in May 1994.
It should finally
be noted that on the 16th
December,
1993, the husband
wrote
as
follows
to his lawyers in the Netherlands
"Mywife
has stated her intention to apply to the
Dutch
![]()
courts
![]()
for
a
divorce.
She has
chosen
![]()
for
the application of
Dutch
law under Article 1 part 4 of the 1981
Divorce
Law. The
Dutch
![]()
court
has jurisdiction to hear this
case
because of Article 814 and the
fact
that I have lived
for
more than twelve months in the Netherlands. I agree to the application of
Dutch
Law.
Inconnection
![]()
with
this I
would
like to notify you of my intention to
change
my
domicile
to the Netherlands. I
would
be grateful if you
would
acknowledge receipt of this letter."
In the course
of his judgment, the learned President, having referred to
what
he
considered
the applicable principles of law, summarises his
conclusions
as
follows
"In thiscase
I
would
be prepared to accept that the respondent became
fond
of living in Holland and that he
was
![]()
content
to remain there
for
the purposes of his
work.
I
would
have no
difficulty
in accepting that if "X" Ltd. had renewed and
continued
to renew his
contract
in Holland, all other things being equal, he
would
have been prepared to remain there. However, I am equally sure that if
for
any reason his employment
was
![]()
discontinued
![]()
with
"X" and if he
was
unable to obtain a suitable position in Holland he
would
have been ready and
willing
to travel to another
country
to pursue a job opportunity. I
can
never
foresee
the possibility that the respondent
would
remain in Holland
come
![]()
what
may and even if he
were
![]()
without
employment. In my view he has not satisfied the positive element of the test. No more
do
I
consider
that he
formulated
any intention of abandoning Ireland as his
domicile
of origin. The only evidence
which
is
consistent
![]()
with
this intention
was
the sale of the
family
home and the
cancelling
of his membership of
clubs.
If one
weighs
these
factors
against the evidence that he returned to Ireland
for
his summer holidays, that he visited his
family
in Ireland on a number of occasions, that he arranged
for
his
wife
to return to Ireland
when
![]()
difficulties
arose in the marriage, in my view it is
clear
beyond
doubt
that he never abandoned his
domicile
of origin.
Accordingly I hold that on the 13th July, 1994 being thedate
upon
which
the
divorce
![]()
was
obtained in the Netherlands, the [husband]
was
![]()
domiciled
in Ireland."
On behalf of the husband, Mr. Durcan
S.
C.
submitted that, in reaching these
conclusions,
the trial judge made errors of law and
fact
such as to render the trial so unsatisfactory that his
decision
should be set aside by this
court
and that the
court
should grant a
declaration
that the
divorce
is entitled to recognition under Irish law. Alternatively, he submitted that, if this
court
was
of the view that there
were
not adequate
findings
of
fact
to allow this
court
to
come
to a
conclusion
with
regard to the issue of recognition, the
case
should be remitted to the High
Court
for
a new trial.
Mr. Durcan
submitted that the trial judge
was
in error in making the
following
findings:
(1) That thedivorce
in the Netherlands
was
granted on 13th July, 1994,
whereas
in
fact
it
was
granted on 12th September, 1994
(2) That the husbandwas
employed by the Irish
company
as a project manager,
whereas
in
fact
he
was
employed by a
Dutch
![]()
company
![]()
which
![]()
was
a subsidiary of the Irish
company
(3) That the husband's employment in the Netherlandswas
![]()
for
a period of
five
years, subject to review at that time and the possibility of renewal,
whereas
in
fact
it
was
an "open-ended
contract"
(4) That therewere
no
facilities
![]()
for
![]()
crèches
in the area
where
the husband and the
wife
![]()
were
living and that there
was
no employment available to the
wife,
![]()
whereas
the evidence
was
that the younger
children
![]()
went
to a
crèche
and there
was
no evidence as to the employment opportunities available to the
wife.
(6) That the idea of returning towork
in Ireland in the year 1992
was
one of many options
considered
by the husband and that he
did
so only in the hope that it might save the marriage,
whereas
there
was
no evidence that the husband
considered
any option other than the possibility of taking up a job
with
the Irish
company.
(7) That the evidence of the husbandwas
that "it
was
always his intention to remain on in Holland",
whereas
this
was
not the husband's evidence: his evidence
was
to the effect that it
was
not until the latter part of 1992 that he arrived at a positive
decision
to stay in the Netherlands
(8) That itwas
envisaged,
when
he took up employment in the Netherlands
first,
that if he
wished
to return to Ireland an effort
would
be made to accommodate him,
whereas
the evidence
was
that the
contract
![]()
was
open-ended.
Mr. Durcan
S.
C.
further
submitted that the trial judge had
failed
to make
findings
of
fact
in regard to a number of important matters. He said that, effectively, the trial judge's summary of the
factual
evidence ended in September 1992 and
did
not
deal
with
the subsequent events ending in the husband's return to
work
in Ireland in May 1994. Nor had he resolved the
conflict
of evidence between the parties as to the
circumstances
in
which
the
wife
had returned to Ireland
with
the
children.
Mr.
Durcan
also submitted that the trial judge had not applied the
correct
principles of law in two major respects. In the
first
place, he had treated the
date
of the granting of the
divorce
(
which
he erroneously said
was
the 13th July, 1994) as the relevant
date
for
determining
whether
the husband
was
domiciled
in the Netherlands. In the second place, he had treated the appropriate test as being
whether
the husband
would
remain in the Netherlands "
come
what
may, and even if he
were
without
employment",
whereas
the appropriate test
was
whether
he had
formed
a settled intention permanently to reside in Holland, even if that
were
subject to a
caveat
that he might leave Holland if he
could
not
find
any suitable employment there.
The domicile
of origin of the husband in this
case
was
Irish. The
factors
to be taken into account in
determining
whether
such a
domicile
of origin has been replaced by a
domicile
of
choice
were
summarised by Budd J. in In Re. Sillar, Hurley –v-
Winbush
[1956] IR 344, in a passage
which
has been approved of on a number of occasions in this
court:
"From
a
consideration
of the
case
law it is
clear
that it is a question of
fact
to
determine
![]()
from
a
consideration
of all the known
circumstances
in each
case
![]()
whether
the proper inference is that the person in question has shown unmistakably by his
conduct,
viewed against the background of the surrounding
circumstances,
that he had
formed
at some time the settled purpose of residing indefinitely in the alleged
domicile
of
choice.
Put in more homely language, that he had
determined
to make his permanent home in such place. That involves, needless to say, an intention to abandon his
former
![]()
domicile.
![]()
Where
he has made a
declaration
touching on the matter it must be
weighed
![]()
with
the rest of the evidence. Such a
declaration
may be a
determining
![]()
factor,
but
will
not be permitted to prevail against established
facts
indicating more properly a
contrary
![]()
conclusion."
In applying that test to a person, such as the husband in the present case,
who
has left his
country
of origin and taken up employment in another
country
for
a period of time, amounting in this
case
to seven years, it is important to bear in mind that a
decision
to move one's residence to another
country
in
circumstances
of that nature may not be sufficient to
discharge
the significant onus of establishing that a person has abandoned his
domicile
of origin and acquired another
domicile
of
choice.
As Henchy J. observed in T. –v- T. [1983] IR 29
"The period lived abroad may be no more than the external manifestation of the temporarycompulsion
of
circumstances.
Such bare
facts
as
we
have in this
case
as to the husband's
foreign
residence
do
not show the volitional and
factual
transition
which
is the sine qua non
for
shedding a
domicile
of origin and acquiring a
domicile
of
choice."
The difficulties
attendant on establishing a
claim
in such
circumstances
that a person has abandoned his or her
domicile
of origin and acquired a
domicile
of
choice
are
well
illustrated by the
decision
in
C.M.
–v- T.M.. In that
case
a married
couple
with
a
domicile
of origin in England lived in Ireland
from
1979 to 1985
when
the marriage broke
down.
At that stage the husband returned to England and initiated
divorce
proceedings there. An issue arose as to
whether
at the
date
of the initiation of
divorce
proceedings he
was
domiciled
in England.
Barr J. said that he was
satisfied that the husband
was
motivated primarily by
financial
considerations
in
deciding
to
come
to Ireland in 1979 and take up residence there, although he
was
also satisfied that he and his
wife
intended to establish their home in Ireland. As in this
case,
one of the matters influencing that
decision
was
the nature of the tax regime
which
would
apply to him in Ireland as opposed to the United Kingdom. The learned judge
went
on:
"However itdoes
not
follow
![]()
from
the
fact
that the husband
decided
to accept the tax and other advantages
which
Ireland offered, that the setting up of a
family
residence here
for
an indefinite period established per se an intention on his part to make his permanent home in Ireland and to abandon his
domicile
of origin. It seems to me that there is an important
distinction
between setting up home
for
an indefinite period in a particular place and setting up a permanent home there. The latter implies that the situation thus
created
is intended to
continue
![]()
for
the
foreseeable
![]()
future
and may be altered only in the event of a
change
of
circumstances
![]()
which
is not then in
contemplation
or anticipated as being likely to happen at a
future
![]()
date
(but excluding
consequences
such as the inevitability of old age and natural
changes
in
family
![]()
circumstances
![]()
which
are not anticipated in the short or medium term). On the other hand, a home
which
is established in a particular place
for
an indefinite period may
depend
upon the
continuance
of
circumstances
![]()
which
are themselves indefinite as to likely
duration.
In my view a home set up in the latter basis
does
not have the element of permanency as so
defined
![]()
which
is an essential indicator of a
change
in
domicile."
In that case,
it
was
held that the burden of proof of
displacing
the
domicile
of origin had not been
discharged.
I am satisfied that, applying these well
settled principles of law, it
would
not have been possible
for
the trial judge in the present
case,
in the light of the agreed or admitted
facts,
to hold that the presumption as to the
continuance
of the
domicile
of origin had been rebutted.
I cannot
see that any
different
conclusion
would
follow
if one
were
to treat the
critical
period in this
case
as being that
from
August to
December
1992, as Mr.
Durcan
urged, on the basis that the husband's evidence
was
that it
was
during
this period that he accepted that his marriage had broken
down
and that he
would
not be living in the
future
with
his
wife
and
children
in Ireland.
In this context,
there are two highly relevant passages in his evidence. This
first
is in the Transcript, Volume 2, at p. 15:
"20Q. Ms.Clissmann.
![]()
What
![]()
was
your
family's
outlook in relation to moving to live in Holland?
A. I thinkwe
looked on it as an adventure. I
don't
think I had ever thought
we
![]()
would
![]()
come
back to live in Ireland again. I think my ex-
wife
quite liked the idea of Holland. There
was
one other alternative
we
looked at in Bermuda and that really never amounted to much, but Holland
was
a
fairly
![]()
civilised
place and you had a lot of
culture,
a lot of traditions, and it
was
an adventure that
we
![]()
were
going to go and
do.
Mr. Justice Morris.Why
![]()
would
you not
come
back to Ireland again? Have you not got relations,
friends,
ties?
A. Sorry, I meant to live permanently. Myfamily
are in
Cork.
My parents, brothers and sisters are in
Cork.
But only in the
context
of holidays, not in terms of living …
A. I think maybewhen
I moved there
first
I
would
have had an outlook of
who
knows
where
this
will
take me too but as I lived there and as I got to
work
![]()
with
the
Dutch
people and as I got used to
Dutch
and to understand the
way
the economy
worked,
I liked
working
there and I liked the people there and I liked the art galleries and things like that so to me that
was
home. I
didn't
think I
would
uproot myself and go anywhere else. I just liked it, effectively.
Mr. Justice Morris.Was
that an intention that you
formed
before you
went
there?
A. No.
Mr. Justice Morris. Orwas
it one that you acquired
when
you
were
there?
A. Yeah, I'd
say I acquired it once I become
comfortable
speaking
Dutch."
The second is in the same volume at p. 68 as follows:
"176Q. Again, just to beclear
![]()
do
you say by the end of 1992,
for
![]()
whatever
reason, you
were
not ever going to take that job ?.
A. Iwould
say by the end of August 1992 I
was
absolutely sure I
was
never going to take either of those two jobs. Actually,
what
you are saying is actually a key turning point because
when
I
went
back to
work
in Holland, I got used to living on my own, I
was
used to living in a house on my own, no
family
around and my mental attitude towards, in terms of
what
![]()
was
right and
what
I
wanted
to
do,
![]()
was
![]()
different.
I had made an attempt to try and keep the
family
together by trying to get a job in Ireland, that
wasn't
of any interest to me. And then I
went
back, and I started living on my own in Holland, and I got used to it, and as I said, this is
where
I am
comfortable
and this is
where
I am happy."
I am satisfied that, looking at this evidence in the most favourable
light possible so
far
as the husband is
concerned,
it established no more than that the husband in 1992, because of his then
circumstances,
had no immediate intention of returning permanently to Ireland. It remained entirely possible that if
circumstances
altered – such as an offer of a post in Ireland more attractive than the ones that he had rejected earlier that year or the prospect of a reconciliation
with
his
wife
or a
combination
of both
factors
– he
would
have returned to Ireland permanently. If that
was
still his state of mind at the time the
divorce
proceedings
were
instituted by him in the Netherlands – and there is nothing to suggest that it
was
not – it
falls
well
short of the
formation
of a settled purpose of residing indefinitely in the Netherlands.
I think the same conclusion
would
inevitably
follow,
whether
one treated the
date
of the initiation of the proceedings as the relevant
date
or, as the trial judge in error
decided,
the
date
on
which
the
divorce
was
granted. I have no
doubt
whatever
that, even if one
were
to accept at any points of
conflict
the testimony of the husband in preference to that of the
wife,
the overwhelming burden of that evidence
was
that the
continued
residence of the husband and the
wife
in the Netherlands
was
inextricably linked to their then personal
circumstances,
i.e. the availability to the husband of
congenial
and remunerative employment in the Netherlands and the absence of any equivalent opportunities in Ireland. Evidence as to a
form
of residence in a
foreign
country
so
dependant
on the particular personal
circumstances
of the person alleged to have abandoned a
domicile
of origin is very
far
removed
from
the evidence of a
fixed
intention to make one's permanent home in a
foreign
country,
which
the authorities stipulate as the essential precondition to a
finding
that a
domicile
of origin has been abandoned and a
domicile
of
choice
acquired.
I have considered
the appeal so
far
on the basis that Mr.
Durcan's
submission that the trial judge misunderstood the essential
case
being advanced on behalf of the husband and also
failed
to resolve
critical
issues of
fact
is
well
founded.
I think that his judgment read as a
whole
– and even the passage
which
I have
cited
where
he
comes
to his
conclusions
– indicates that he
was
fully
aware of the
case
being made on behalf of the husband, but even if he
were
not, I am satisfied that,
for
the reasons given, the
conclusion
that the husband had not
discharged
the burden of proof as to the abandonment of the
domicile
of origin and the acquisition of the
domicile
of
choice
was,
in the light of the evidence, inevitable. That
would
have also been the situation if he had resolved the
conflict
of evidence as to the
circumstances
in
which
the
wife
returned to Ireland
with
the
children
in August, 1992 – as Mr.
Durcan
urged he should have
done
– and had
decided
it in
favour
of the husband. As to the other
factual
errors in the judgment on
which
Mr.
Durcan
laid emphasis, I am satisfied that these related to peripheral matters
which
could
not have had any significant bearing on the resolution of the
central
issue as to
domicile.
There remains the letter of the 16th December,
1993 in
which
the husband notified his lawyer of his intention to "
change
my
domicile
to the Netherlands".
While
the authorities make it
clear
that a
declaration
by the person
concerned
as to his
domicile
is a
factor
to be
weighed
with
the rest of the evidence, the
context
in
which
the
declaration
is made and its actual
form
is of importance in
determining
what
weight
it should be given.
While,
in the absence of any
finding
by the trial judge, I am satisfied to approach that letter on the basis that it
was
not
written
by the husband
with
any intention to
deceive
any person, the
fact
remains that it
was
written
by him in the
context
of the
divorce
proceedings and
with
the obvious intention on his part of ensuring, so
far
as he
could,
that there
was
no obstacle to the granting of the
divorce.
In those
circumstances,
little significance
can
be attached to the letter in the light of all the other evidence in the
case.
The learned trial judge did
not
deal
with
another
factor
in the
case
which,
on one view, even in the absence of all other
considerations,
might
well
have proved
fatal
to the husband's
claim
to have been
domiciled
in the Netherlands at the
date
of the initiation of the proceedings on 2nd March, 1994. At that time, the husband had been offered the position in Ireland
which
he accepted the
following
May at
which
stage, as he
conceded,
he abandoned any intention of living indefinitely in the Netherlands and resumed his residence in Ireland. Since the authorities make it abundantly
clear
that one must look at all the surrounding
circumstances
in
determining
whether
the husband at the relevant time had
formed
the settled purpose of residing indefinitely in the alleged
domicile
of
choice,
it
would
be unthinkable that one
could
disregard
so significant a
factor
as the abandonment by him of any plans to remain indefinitely in the Netherlands and his return to Ireland
within
a matter of
weeks,
rather than months, of the relevant
date.
Since, however, this is not a matter on
which
the trial judge relied in
coming
to his
conclusion
on the question of
domicile,
it should not, in
fairness
to the husband, be taken into account in
determining
this appeal.
I am satisfied that no useful purpose would
be served in the present
case
by remitting the
case
to the High
Court
for
a
further
hearing,
despite
the errors and omissions
which
have been identified in the judgment under appeal, since the admitted and agreed
facts
in the
case
could
lead to only one
conclusion,
i.e. that the husband had
failed
to
discharge
the burden of proof resting on him of establishing that the
domicile
of origin had been abandoned and a
domicile
of
choice
in the Netherlands acquired.
I would
dismiss
the appeal and affirm the order of the High
Court.