THE SUPREME COURT
No. 1999/165
Denham J.
Murphy J.
Barron J.
Murray J.
Hardiman J.
BETWEEN
G. McG.
PETITIONER
AND

D.W.
RESPONDENT
AND

A.R.
NOTICE PARTY

[Judgments by Denham J., Murphy J. and Murray J.; Barron J. and Hardiman J. agreed]

Judgment of The Hon. Mrs. Justice Denham delivered the 31st day of March, 2000.

________________________ page break ________________________

-2-

This is an appeal by the Attorney General against the judgment and order of the High Court (McGuinness J.) delivered on 18th June, 1999 and perfected on 24th June, 1999, whereby the High Court declined to join the Attorney General as a notice party. The single issue on this appeal is whether the Attorney General may be added as a notice party in circumstances where the High Court judgment has been delivered, the order perfected and no appeal taken by any of the parties. The issue is one of law.

Facts

This case commenced as a petition of nullity of marriage. The basic facts were set out by McGuinness J. in a judgment delivered on 14th January, 1999, where she stated:

“The Petitioner’s nullity proceedings have followed a somewhat unusual course. The Citation was issued pursuant to an Order of the Master of the High Court made on the 10th March, 1998. It was served together with the Petition and Affidavit according to the Rules of the Superior Courts. An Answer dated the 6th July 1998 was filed by the Respondent which basically admitted the facts set out in the Petition. Application was then made to the Master for the customary order regarding time and mode of trial and the questions to be tried. No submissions either factual or legal were made before the Master in regard to the English divorce but it appears that the Master took the view that the English divorce was of no effect in Irish law and that the parties had committed bigamy. He refused the Order sought in the nullity proceedings and directed that the papers be sent to the Director of Public Prosecutions. I was informed by Counsel at the hearing before me that a number of persons, including the Notice Party (who was not then a party to the proceedings) had been interviewed by the Garda Síochána in connection with a possible charge of bigamy.

The Petitioner, who was not unnaturally somewhat concerned, appealed the Master’s Order to this court. The learned Budd J. overturned the Master’s Order and fixed time and mode of trial but felt that there no [sic] was no action open to him to take in regard to the transfer of the papers to the Director of Public Prosecutions.

________________________ page break ________________________

-3-

Subsequently, in view of the fact that Mrs. R. had by that time a vital interest in the outcome of the proceedings, she was joined as a Notice Party by Order of Laffoy J. on the 23rd October, 1998.

When the proceedings came on for hearing before this court, Senior Counsel for the Petitioner, Mr. Durcan, submitted that, while the proceedings were in the form of a nullity petition, the real concern of the Petitioner was to ascertain his true marital status according to the law of this country. He was not urging the court to take any particular course with regard to the validity or otherwise of the English divorce, although he was, of course, concerned about the possibility of a criminal charge of bigamy. Senior Counsel for the Notice Party, Mr. O’Donnell stressed that the Notice Party had been shocked and distressed by being interviewed by the Garda Síochána and was most anxious to establish that her marriage to Mr. R. was a valid and legal marriage in this country, where she now resides.

All parties were in agreement that it would be preferable for the court to treat the petition for a declaration of nullity as if it were an application pursuant to section 29(l)(d) or (e) of the Family Law Act, 1995 in regard to the recognition of the 1985 English divorce of the Petitioner and the Notice Party.”

McGuinness J. cited s.29(1) of the Family Law Act, 1995 and continued:

“It appeared to me that the basic question at issue in the proceedings was whether the 1985 English divorce was entitled to recognition in this State. From this the validity or otherwise of both subsequent marriages would flow. I accordingly agreed to proceed as suggested by Counsel for the parties and heard the relevant legal submissions.

At the conclusion of the hearing before me, since the matter was one of urgency due to the possible pending criminal proceedings, I held that the divorce between the Petitioner and the Notice Party was entitled to recognition in this State and that accordingly the marriage between the Petitioner and the Respondent was a valid marriage as was the marriage between the Notice Party and Mr. R. I also directed that any criminal proceedings or investigations directed thereto should cease forthwith.

Since the issues of law which arose in the proceedings were of general public importance I reserved the setting out of the reasons for my decision.”

The learned trial judge reviewed the law on the recognition of foreign divorces. Of

________________________ page break ________________________

-4-

counsels’ argument she described:

“Senior counsel for the notice party, Mr. O’Donnell, (with support from Senior Counsel for the Petitioner, Mr. Durcan) submitted that since the decision of the Supreme Court in W. v. W. the constitutional, legal and factual context in this jurisdiction has dramatically changed. He described the changes in the law relating to divorce in Ireland as being of seismic proportions and stated that there had been a dramatic shift in public policy. Bearing in mind the principle enunciated by the Supreme Court in W. v. W. that common law rules are judge-made law and may be modified in the light of the present policy of the Court, Mr. O’Donnell submitted that this Court should now consider further development of the common law recognition rule.

There is no doubt that Mr. O’Donnell is correct in his submission that the law in regard to divorce in Ireland has been dramatically altered since 1993, firstly by the passing by Referendum on the Fifteenth Amendment to the Constitution and secondly by the enactment by the Oireachtas of the Family Law (Divorce) Act 1996 (the Act of 1996). This State now itself possesses a divorce jurisdiction both under the new Article 41.3.2 of the Constitution and under the Act of 1996.”

Of the Family Law Act, 1995, the learned trial judge held:

“It is of interest to note that the same statutory bases are provided in the Family Law Act 1995 for the Court’s exercise of its jurisdiction to make declarations as to marital status (Section 29) and to grant decrees of nullity (Section 39). This demonstrates a clear policy of the legislature that jurisdiction in matrimonial matters is not limited to a basis of domicile, but extends to a basis of ordinary residence for one year prior to the issue of the relevant proceedings.”

The learned trial judge then made a decision of law on recognition of foreign divorces.

She stated:

“It would seem to me both logical and reasonable that the Irish common law recognition rule should similarly be extended to cover cases where under the statute law the Irish Courts claim entitlement not alone to dissolve marriages but also to annul them and to make far reaching declarations as to marital status. The well known policy of the comity of Courts alone would support such an extension of recognition.”

________________________ page break ________________________

-5-

After further analysis of the common law on the recognition of foreign divorces the learned trial judge concluded that the court may develop the rules on recognition, on the basis that the common law rules are judge-made law and may be modified according to the current policy of the court. McGumnness J. then extended the common law on the recognition of foreign divorces and applied this new common law to the divorce in issue.

The Attorney General did not learn of the case until after the judgment was delivered. It was a family law case heard in camera. It was on the distribution of the reserved judgment that the matter came to his notice. The Attorney General then sought, by Notice of Motion dated 10th March, 1999, to be joined as a notice party.

It is clear that the Attorney General’s purpose, ifjoined, is to apply to the Supreme Court to extend the time within which to appeal the decision of the High Court and if that is successful then to appeal the judgment of the learned trial judge to this court. The Attorney General indicated his concern as to the state of the common law in relation to the recognition of foreign divorces and as to the effect to be given to the judgment of the High Court. All the parties to the action opposed his motion in the High Court, as they do in this court.

Issue

On the motion of the Attorney General to be joined, by judgment delivered on 18th June, 1999, the learned High Court judge held that the court had no jurisdiction to alter the order made on 12th November, 1998 and refused the relief sought in the motion. The Attorney General has appealed that judgment. Thus the net issue on this appeal is one of law and is as to whether or not the Attorney General may be joined.

________________________ page break ________________________

-6-

Submissions

Submissions were made on behalf of the parties and the Attorney General. All the parties opposed the application of the Attorney General. Mr. Eoghan Fitzsimons, S.C., on behalf of the Attorney General, referred to full written submissions, which were considered by the Court. Counsel for the Attorney General submitted that there was one point on this appeal. He argued that the order made under the Family Law Act, 1995 without the presence of the Attorney General was not a final order. It was not a final order regulating all the rights of the parties. Therefore, it was an extreme situation where the court should exercise its inherent jurisdiction.

Law

Earlier statutory provision required that the Attorney General be a party in somewhat similar proceedings. There was a clear legislative policy. The position of the Attorney General as a party to proceedings relating to the validity of marriages was set out in Legitimacy Declaration (Ireland) Act, 1868, an Act to enable persons to establish their legitimacy, the marriage of their parents and others from whom they may be descended. Under the said Act the procedure envisaged an application to the Court of Probate in Ireland praying for a decree of legitimacy and or for a decree that the marriage of a father and mother or grandfather and grandmother was a valid marriage. Section 1 of the said Act of 1868 concluded with the words:

“... and such Court shall have Jurisdiction to hear and determine such Application, and to make such Decree declaratory of the Legitimacy or

________________________ page break ________________________

-7-

Illegitimacy of such Person, or of the Validity or Invalidity of such Marriage, as to the Court may seem just; and such Decree, except as herein-after mentioned, shall be binding to all Intents and Purposes on Her Majesty and on all Persons whomsoever.”

By Section 6 of the said Act of 1868 the Attorney General was made a respondent in all such actions. The section stated:

“A Copy of every Petition under this Act, and of the Affidavit accompanying the same, shall One Month at least previously to the Presentation or filing of such Petition be delivered to Her Majesty’s Attorney General for Ireland, who shall be a Respondent upon the Hearing of such Petition, and upon every subsequent Proceedings relating thereto.”

This was a clear statutory position. It showed a legislative policy that the Attorney General be a party to all such actions.

Under current law in England and Wales declarations may be sought as to marital status and legitimacy or legitimation under the Family Law Act, 1986. The legislation includes provisions relating to the Attorney General. The court may at any stage direct that papers be served on the Attorney General, and, irrespective of any court motion or party application, the Attorney General may intervene. This is provided for in s. 59 which states:

“59.-(l) On an application for a declaration under this Part the court may at any stage of the proceedings, of its own motion or on the application of any party to the proceedings, direct that all necessary papers in the matter be sent to the Attorney-General.
(2) The Attorney-General, whether or not he is sent papers in relation to an application for a declaration under this Part, may-
(a) intervene in the proceedings on that application in such maimer as he thinks necessary or expedient, and
(b) argue before the court any question in relation to the application which the court considers it necessary to have fully argued.

________________________ page break ________________________

-8-

(3) Where any costs are incurred by the Attorney-General in connection with any application for a declaration under this Part, the court may make such order as it considers just as to the payment of those costs by parties to the proceedings.”

Whereas under the previous law the Attorney General had to be brought into all cases this is no longer the case. However, the effect of the declarations under Part III of the said 1986 Act is stated clearly in s.58:

“58.-(l) Where on an application for a declaration under this Part the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.
(2) Any declaration made under this Part shall be binding on Her Majesty and all other persons.”
(The emphasis is added)

This illustrates a clear legislative approach as to the in rem nature of the judgment. There is a similar approach in the common law of England and Wales. Thus in The Ampthill Peerage [1977] A.C. 547, 576 Lord Simon of Glaisdale stated:

“... if the judgment is as to the status of a person, it is called a judgment in rem and everyone must accept it.”

Lord Wilberforce said, at page 568:

“It is vitally necessary that that the law should provide a means for any doubts which may be raised to be resolved, and resolved at a time when witnesses and records are available. It is vitally necessary that any such doubts once disposed of should be resolved once and for all and that they should not be capable of being reopened whenever, allegedly, some new material is brought

________________________ page break ________________________

-9-

to light which might have borne upon the question. How otherwise could a man’s life be planned?”

A declaration may be rescinded if obtained by fraud. This was explained by Lord Wilberforce as “[t]here must be conscious and deliberate dishonesty, and the declaration must be obtained by it” in The Ampthill Peerage [1977] A.C. 547, 571.

Law Reform Commission

The Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters, (LRC 6 - 1983) made recommendations. The Commission considered the then law on declarations as to status would benefit from restatement in clear terms in modern legislation. It was recommended that the proposed legislation should enable a person to apply to the High Court for a decree declaring that his or her marriage was or is a valid marriage. It was proposed that the legislation would replace the provisions of the Legitimacy Declaration (Ireland) Act 1868 to the extent that they related to the validity of the marriage of the petitioner, but it would not affect the provisions of that act relating to declarations as to the validity of the marriage of the parents of the petitioner. It was recommended, at pages 24 and 25 of the said Report:

“The alleged other party to the marriage and the Attorney General should be joined in such proceedings ...”

________________________ page break ________________________

- 10 -

Family Law Act, 1995

Part IV of the Family Law Act, 1995 is a restatement of the law which enables a person to apply to the court for a declaration as to the validity of his or her marriage. This legislation implements, with some changes, recommendations of the Report of the Law Reform Commission on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters.

Under the Family Law Act, 1995, Part IV, the Attorney General is not required to be a respondent in every action. The parties have a choice as to whether he or she will be given notice. Furthermore, the Attorney General is also given a choice as to whether he or she will participate. These choices are stated to have an effect, as set out in s. 29(8) of The Family Law Act, 1995.

On the matter of declarations as to marital status the relevant provisions of s. 29 of the Family Law Act, 1995 state:

“29(1) The court may, on application to it in that behalf by either of the spouses concerned or by any other person who, in the opinion of the court has sufficient interest in the matter, by order make one or more of the following declarations in relation to a marriage, that is to say:

(d) a declaration that the validity of a divorce, annulment or legal separation obtained under the civil law of any other country or jurisdiction in respect of the marriage is entitled to recognition in the State,

(e) a declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in the State.”

________________________ page break ________________________

-11-

The said legislation enables the Attorney General to be a participant. Unlike the legislation of 1868 the joining of the Attorney General is not mandatory. Section 29(4) of the Family Law Act, 1995 states:

“The court may, at any stage of proceedings under this section of its own motion or on application to it in that behalf by a party thereto, order that notice of the proceedings be given to the Attorney General or any other person and that such documents relating to the proceedings as may be necessary for the purposes of his or her functions shall be given to the Attorney General.”
(The emphasis is added)
The use of the word “may” in this section indicates that the court has a choice, at any stage of the proceedings, by its own motion or on application by a party, to give notice of the proceedings to the Attorney General or any other person. In cases where it may be anticipated that a fundamental change in or development of the law is to be argued it would be appropriate for a court to give notice to the Attorney General. Under the legislation it is a matter of notice to the Attorney General or other person.

However, if the Attorney General applies to be a party to any proceedings he or she must be added as a party. Section 29(5) states:

“The court shall, on application to it on that behalf by the Attorney General, order that he or she be added as a party to any proceedings under this section and, in any such proceedings, he or she shall, if so requested by the court, whether or not he or she is so added to the proceedings, argue any question arising in the proceedings specified by the court.”

Thus, in addition to the situation where the Attorney General is added as a party on his application, a situation is envisaged where a court may request the Attorney General to

________________________ page break ________________________

- 12 -

argue questions arising in the proceedings, whether or not he or she is added as a party.

After delineating these choices as to whether or not the Attorney General be given notice or be a party s.29 then describes the binding nature of a declaration under this section in the so terms:

“(8) A declaration under this section shall be binding on the parties to the proceedings concerned and on any person claiming through such a party and, if the Attorney General is a party to the proceedings, the declaration shall also be binding on the State.”

Thus it appears that a declaration is binding on the parties to the proceedings and on a person claiming through such party. However, in addition, a further effect is set out in s.29(8) being:

“... if the Attorney General is a party to the proceedings, the declaration shall also be binding on the State.”

In view of the choices given to the parties (as to whether the Attorney General be given notice or not) and to the Attorney General (as to whether he be a party or not) these words are a matter of concern. It is clear from the legislation that the parties have a choice as to whether to give notice to the Attorney General or not. In this case they did not give notice to the Attorney General. Such a declaration, in the absence of the Attorney General, is, on its face, based on an Act presumed to be constitutional, binding on the parties.

The court may of its own motion give notice to the Attorney General. This it did not do; it appears that such a choice was not expressly considered. However, the right to a

________________________ page break ________________________

- 13 -

choice exists and that being so it is clear that proceedings may continue without the Attorney General being given notice.

The Attorney General also has a choice as to whether to participate. This he did not exercise prior to or during the hearing of the action in the High Court. It appears that he did not know of the case. There is no requirement in current legislation, contrary to the position in previous legislation, to deliver a copy of the proceedings to the Attorney General. These proceedings were held in camera and the Attorney General did not hear of the court order until after it was made.

It is clear that the Family Law Act, 1995 envisaged a situation where the Attorney General need not be informed of such proceedings. It is also clear that the Attorney General having been given notice, may choose not to participate in the proceedings. The legislation envisages that such proceedings shall be binding on the parties. On its face it creates a binding order. There is no legislative indication that it is an interlocutory order.

The Family Law Act, 1995 is entitled to the presumption of constitutionality. The meaning of the words “if the Attorney General is a party to the proceedings, the declaration shall also be binding on the State” is not a matter for resolution on this motion. It is sufficient to determine that the legislation envisaged two types of orders, one of which has been made in this case.

Similar Statute

A similar approach to the Attorney General’s role may be seen in the Status of Children Act, 1987. Section 35 of the said Act provides for a declaration of parentage. The

________________________ page break ________________________

-14-

position in relation to the Attorney General is also one of choice involving the court, the Attorney General and the parties. The effect of such an order is stated in s.35(9):

“(9) Any declaration made under this section shall be in a form to be prescribed and shall be binding on the parties to the proceedings and any person claiming through a party to the proceedings, and where the Attorney General is made a party to the proceedings the declaration shall also be binding on the State.”

Nature of the Order of the High Court?

In this case the court is required to consider the nature of the order of the High Court, and to determine whether it is a final order. All parties to the proceedings have argued that the order of 12th November, 1998 and judgment of 14th January, 1999 of the High Court are final and that consequently the High Court and this court on appeal have no jurisdiction to add any party thereto.

S.29(4) enables the court “at any stage of the proceedings” to give notice to the Attorney General. S.29(5) requires a court, if the Attorney General applies, to order that he or she be added as a party to any such “proceedings”. The concept of “proceedings” envisages a case in being. However, in the ordinary course of litigation, cases finish, a final order is made and proceedings are concluded. Finality of litigation and the certainty of law are cornerstones of the administration of justice.

There is well established jurisprudence as to the lack of jurisdiction of a court once a final order has been given in a case. A court may amend such order only in very limited circumstances. This fundamental jurisdiction was described by Finlay C.J. in Belville Holdings Ltd. v. Revenue Commissions [1994] ILRM 29, 36-37 as follows:

________________________ page break ________________________

- 15 -

“There is, however, I am satisfied, a wider and more fundamental jurisdiction in a court to amend an order which it has previously made, even though that order is in the form of a final order and has been perfected.

We have not been referred to, nor have I been able to discover, any decision of this Court or of the Irish courts dealing with this question.

The position and principles appear, however, to be accurately stated in the judgment of Romer J. in A insworth v. Wilding [1896] I Ch 673, where, at p.677 he stated as follows:

‘So far as I am aware, the only cases in which the court can interfere after the passing and entering of the judgment are these:

(1) Where there has been an accidental slip in the judgment as drawn up, in which cases the court has power to rectify it under 0.28, r. 11;
(2) When the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.’

Having referred to the decision of the Court of Appeal in In re Swire 30 ChD 239, Romer J quoted from the judgments in that case as follows at p.678:

‘Cotton LJ  says: “It is only in special circumstances that the court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinlon the court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon what which the court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will in a proper case exercise, to correct its record, that it may be in accordance with the order really pronounced.”

Lindley LJ says: ‘If it is once made out that the order, whether passed and entered or not, does not express the order actually made, the court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.’

And Bowen LJ says: “An order, as it seems to me, even when passed and entered, may be amended by the courts so as to carry out the intention and express the meaning of the court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice.”

I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning this question. I would emphasise, however, that it is only in special or unusual circumstances that an amendment of an order passed and perfected, where the order is of a final nature, should be

________________________ page break ________________________

-16-

made by the court. The finality of proceedings both at the level of trial and, possibly more particularly, at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law and should not lightly be breached.”

The court has jurisdiction to amend an order so as to carry out the intention and express the meaning of the court: The People at the Suit of the Director of Public Prosecutions v. Sheedy Court of Criminal Appeal, Denham J., 21st December, 1999, unreported.

In a judgment of 18th June, 1999, applying the law as stated in Belville Holdings and affirmed in The Attorney General (at the relation of the Society for the Protection of Unborn Children (Ireland) Ltd.) v. Open Door Counselling Limited (No. 2) [1994] 2 IR 333 at pages 338 to 340 inclusive, the learned trial judge refused the Attorney General’s motion in the following words:

“Thus, even where such a highly unusual change of circumstances had occurred subsequent to the final Order, the Supreme Court was definite in its decision that the Court had no jurisdiction to alter the Order it had previously made. I am clearly bound by this judgment and therefore this Court has no jurisdiction to alter the Order made on the 12th of November, 1998.

In addition it seems to me that it would be a manifest and striking injustice to the parties to reopen a decision of such practical importance to their ordinary lives and in reliance upon which they have already acted.

I will therefore refuse the relief sought in the Motion.”

Decision

I am satisfied that the leamed High Court judge was correct. Whilst the Family Law Act, 1995 allows for the joining of the Attorney General as a party to the proceedings it is not mandatory. The parties are given a choice as to whether to give notice to the Attorney

________________________ page break ________________________

- 17 -

General. Indeed, the Attorney General is given a choice as to whether to join the proceedings or not. Thus, it is clear that proceedings are contemplated without the Attorney General.

Further, it is envisaged that the proceedings be final. They are final as between the parties. It is unnecessary to determine the exact meaning of s.29(8). There are two types of orders envisaged in the legislation. In one, the type of order here, the order is binding on the parties, and a final order. The second type of order, where the Attorney General is a party, is also envisaged as a final order.

The Attorney General may be joined under the Act to ‘proceedings’. In this case the proceedings are closed, the order and judgment given. There are no proceedings in being. The proceedings have concluded. The final order has been given. Thus, there are no extant proceedings to which to join the Attorney General. This is not a situation where the case is on appeal to the Supreme Court. This is not a case where proceedings are in being, pending a hearing on appeal.

Further, the order of the High Court was final. It was not an interlocutory order. Applying the test described by Finlay C.J. in Belville Holdings Ltd. v. Revenue Commissioners [1994] ILRM 29 none of the exceptions apply. It is only in special and unusual circumstances that an amendment of an order passed and perfected, where the order is a final order, may be made by the court. None of the exceptions previously identified apply to this case.

The inherent jurisdiction of the courts as expressed by Finlay C.J. in Belville Holdings v. Revenue Commissioners [1994] ILRM 29 does not to trench on the principle of the finality of litigation but rather ensures that the intent of the court in making an order is met. In certain special and unusual circumstances such inherent jurisdiction may be utilised in the interests of justice. The justice of this case for the parties does not require it to be

________________________ page break ________________________

- 18 -

reopened. The proceedings have concluded. The parties have acted on foot of the order made by the High Court.

In addition, the Family Law Act, 1995 does not provide a legal basis for the Attorney General’s motion. That said Act clearly envisages court orders, to which the Attorney General is not a party, which are final. Consequently, I am satisfied that the court does not have jurisdiction to reopen the proceedings for the purpose of enabling the Attorney General to be joined so that he may seek leave to extend time within which to appeal and, if successful, argue against the decision of the High Court judge as to the common law of the recognition of foreign divorces. The Attorney General may choose to make such submissions in another case.

Further, the Attorney General may consider examining the legislative framework under which his position in such proceedings is determined at the moment. Perhaps any change to the law may be addressed best by legislation rather than extending the inherent jurisdiction of the court.

No decision was sought or made on this motion, nor should any inference be drawn, on the substantive issue, the recognition of foreign divorces.

Conclusion

I would dismiss the appeal for the reasons stated herein.

________________________ page break ________________________

THE SUPREME COURT
No. 1999/165
Denham J.
Murphy J.
Barron J.
Murray J.
Hardiman J.
BETWEEN
G. McG.
PETITIONER
AND

D.W.
RESPONDENT
AND

A.R.
NOTICE PARTY

Judgment of Mr Justice Francis D Murphy delivered the 31st day of March, 2000

By order made herein on the 12th day of November, 1998 Mrs Justice McGuinness declared that the Decree made in England on the 12th day of February, 1985 of Dissolution of the marriage solemnised in Dublin on the 27th day of October, 1967 between the above named Petitioner and the above named Notice party was a valid Decree and entitled to recognition in this jurisdiction. It was accordingly ordered that an Application for a Decree that a marriage solemnised in London on the 15th November, 1985 between the Petitioner and Respondent was null and void be dismissed.

________________________ page break ________________________

Because investigations were pending and criminal proceedings threatened, the learned trial Judge arranged that her order be made without delay but understandably postponed until the 14th day of January, 1999 the delivery of her judgment on an important issue which had arisen in the proceedings. That issue was whether the Decree Absolute of divorce issued on the 12th of February, 1985 was entitled to recognition in this country having regard to the fact that it was based on the residence of the Notice Party in England for the appropriate period rather than any domicile arising there.

Some months after the order and judgment aforesaid were made and given the Attorney General applied by notice of motion dated the 10th day of March, 1999 to be joined as a Notice Party in these proceedings. That application was grounded upon the affidavit of Gr~inne O’Mahony, Solicitor. In her affidavit Ms O’Mahony explained that the Attorney General became aware of the above proceedings about the 14th January, 1999 following publicity given in the national media to the judgment of Mrs Justice McGuinness. Attention was also drawn to the fact that the proceedings had been commenced by way of a nullity petition and were only subsequently dealt with, by consent, as an application for a declaration pursuant to s.29 of the Family Law Act, 1995. The affidavit also made clear that it was the intention of the Attorney General, if made a party to these proceedings, to apply to the Supreme Court for an extension of time for leave to appeal the order and judgment of the trial Judge. By order dated the 18th day of June, 1999 Mrs Justice McGuinness refused to join the Attorney General as a party to the proceedings for the reasons set out in a judgment of the same date. It is from that order and judgment that the Attorney General has appealed to this Court.

-2-

________________________ page break ________________________

The right asserted by the Attorney General to intervene in these proceedings derives exclusively from s.29 of the Act of 1995. I would quote that section and the next succeeding section which together constitute part IV of the Act which is entitled “Declarations as to Marital Status”.

“29 (1) The court may, on application to it in that behalf by either of the spouses concerned or by any other person who, in the opinion of the court, has a sufficient interest in the matter, by order make one or more of the following declarations in relation to a marriage, that is to say:

(a) a declaration that the marriage was at its inception a valid marriage,

(b) a declaration that the marriage subsisted on a date specified in the application,

(c) a declaration that the marriage did not subsist on a date so specified, not being the date of the inception of the marriage,

(d) a declaration that the validity of a divorce, annulment or legal separation obtained under the civil law of any other country or]urisdiction in respect of the marriage is entitled to recognition in the State,

(e) a declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in the State.

(2) The court may grant an order under subsection (1) if but only if either of the spouses concerned: -

-3-

________________________ page break ________________________

(a) is domiciled in the State on the date of the application,

(b) has been ordinarily resident in the State throughout the period of one year ending on that date, or

(c) died before that date and either:-

(i) was at the time of death domiciled in the State, or
(ii) had been ordinarily resident in the State throughout the period of one year ending on that date.

(3) The other spouse or the spouses concerned or the personal representative of the spouse or each spouse, within the meaning of the Act of 1965, shall be joined in proceedings under this section.

(4) The court may, at any stage of proceedings under this section of its own motion or on application to it in that behalf by a party thereto, order that notice of the proceedings be given to the Attorney General or any other person and that such documents relating to the proceedings as may be necessary for the purposes of his or her functions shall be given to the Attorney General.

(5) The court shall, on application to it in that beha lf by the Attorney General, order that he or she be added as a party to any proceedings under this section and, in any such proceedings, he or she shall, if so requested by the court, whether or not he or she is so added to the proceedings, argue any question arising in the proceedings specified by the court.

-4-

________________________ page break ________________________

(6) Where notice of proceedings under this section is given to a person (other than the Attorney General), the court may, of its own motion or on application to it in that behalf by the person or a party to the proceedings, order that the person be added as a party to the proceedings.

(7) Where a party to proceedings under this section alleges that the marriage concerned is or was void, or that it is voidable, and should be annulled, the court may treat the application under subsection (1) as an application for a decree of nullity of marriage and may forthwith proceed to determine the matter accordingly and may postpone the determination of the application under subsection (1).

(8) A declaration under this section shall be binding on the parties to the proceedings concerned and on any person claiming through such a party and, Wthe Attorney General is a party to the proceedings, the, declaration shall also be binding on the State.

(9) A declaration under this section shall not prejudice any person if it is subsequently proved to have been obtained by fraud or collusion.

(10) Where proceedings under this section, and proceedings in another jurisdiction, in relation to the same marriage have been instituted but have not been finally determined, the court may stay the first-mentioned proceedings until the other proceedings have been finally determined.

-5-

________________________ page break ________________________

30 (1) Rules of court may make provision as to the information to be given in an application under section 29 (1) including particulars of any previous or pending proceedings in relation to any marriage concerned or to the matrimonial status of a party to any such marriage.

(2) The court may make such order (if any) as it considers just for the payment of all or part of any costs incurred by the Attorney General in proceedings under this section by other parties to the proceedings.

(3) Without prejudice to the law governing the recognition of decrees of divorce granted by courts outside the State, a declaration under section 29 conflicting with a previous final judgment or decree of a court of competent jurisdiction of a country or jurisdiction other than the State shall not be made unless the judgment or decree was obtained by fraud or collusion.

(4) Notification of a declaration under section 29 (other than a declaration relating to a legal separation) shall be given by the registrar of the court to an tArd Chláraitheoir.”

Whilst it is clear from her judgment that the order made by Mrs Justice McGuinness on the 12th November, 1998 was made pursuant to s.29(l)(d) aforesaid, that particular section is not expressly invoked in the order.

-6-

________________________ page break ________________________

The potential involvement of the Attorney General in proceedings under s.29 of the Act of 1995 is dealt with in subsection (4) and (5) from different aspects. Subsection (4) permits the Court either of its own motion or on the application to it by a party to the proceedings to direct that notice of the proceedings be given to the Attorney General. Subsection (5) imposes an obligation on the Court to add the Attorney General as a party to the proceedings if the Attorney General makes an application in that behalf. The same subsection imposes an obligation on the Attorney General to argue any question arising in the proceedings and specified by the Court if so requested by the Court and to do so whether or not the Attorney General has been added as a party. Those subsections are crystal clear to that extent. They impose no obligation either on the Court or on parties to give notice of proceedings under s.29 aforesaid to the Attorney General. Nor are there any circumstances in which the Attorney General can be required by virtue of that section to be made a party.

These provisions are similar to those contained in the Matrimonial Causes Acts, 1857-1873, which were repealed and replaced by the UK Supreme Court Judicature (Consolidation) Act, 1925. It is clear from the 19th Century legislation - which never applied in this jurisdiction -that the purpose of the legislation was to enable the Attorney General to intervene through the medium of the Queen’s Proctor primarily, or so it would seem, to avoid the danger of a decree of divorce or nullity being granted as a result of collusion between the parties. That legislative procedure was facilitated by the fact that the relevant matrimonial orders were in the first instance decrees nisi and the final order was not pronounced until the expiration of at least a further six months. Our legislation of 1995 makes no provision for decrees nisi.

-7-

________________________ page break ________________________

There is another curious provision in s.29. Subsection 8 provides that a declaration made thereunder should be binding on the parties to the proceedings and any person claiming through such a party but the subsection then goes on to say that “if the Attorney General is a party to the proceedings, the declaration shall also be binding on the State”.

Before this Court some debate took place as to the nature and effect of a declaration as to the matrimonial status of parties which was binding on them and persons claiming through them but not binding on the State. It is a difficult concept. The very nature of legal status is the public recognition which it enjoys (or endures) whether that status arises from a contractual arrangement or an accident of birth.

The exemption of the State from the ambit of a declaratory order where the Attorney General has not been invited and accepted the invitation to become a party to the proceedings seems to reflect the provisions of s. 1 of the Legitimacy Declaration (Ireland) Act, 31 Vic C 20. That Section deals expressly with the extent to which orders under that Act were binding on the Sovereign. Counsel for the Attorney General in his written and oral submissions to the Court expressed concern as to the consequences which might result from an order such as that made herein which is not binding on the State. He envisaged difficulties in relation to the registration of particulars of marriage and perhaps the acquisition of passports and other dealings with agents of the State. I doubt myself that these problems could be the consequence of the statutory exemption. However, the parties to the proceedings declined to pursue the issue. There was no reason why they should do so. They accept that the particular provisions of subsection 8 may or may not give rise to difficulties in the future. They are content to deal with them if and when they arise. It was and is their position that the order

-8-

________________________ page break ________________________

made by Mrs Justice McGuinness on the 12th November, 1998 was a final order which disposed of the issue between the parties and that, having made the order and given her reasons therefor, she was functus officio. She had no power, thereafter, they say, to entertain an application by the Attorney General to be joined in the proceedings and was correct in refusing his application in that behalf.

The arguments made on behalf of the Attorney General may be summarised as follows:-

1 Whilst s.29 (4) aforesaid purports to confer a discretion or permissive power on the Court to notify the Attorney General of proceedings claiming declaratory relief under part IV of the Act of 1995 there are circumstances (such as exist in the present case) when the discretionary power must be exercised in favour of giving notice to the Attorney General. It was contended that where the petitioner seeks a declaration that the validity of a divorce obtained abroad is not entitled to recognition in the State that it is unnecessary to notify the Attorney General but where the declaration is for the recognition of the foreign divorce the Attorney General would be an appropriate party. Again, it was emphasised that the judgment of Mrs Justice McGuinness did have a far-reaching effect as it gave recognition to a foreign divorce based on residence rather than domicile. Whilst these distinctions are valid there is nothing whatever in the Act to impose a mandatory obligation on the Court in those or any other circumstances. It seems to me that this argument must be rejected.

2 That a declaration of recognition could not be granted in the absence of an appropriate legitimus contradictor. This argument presupposes that it is the Attorney General, and not a party to the impugned matrimonial proceedings, who is the appropriate contradictor. That

-9-

________________________ page break ________________________

proposition is wholly inconsistent with the provisions of the Act of 1995. That Act proceeds on the footing that the petitioner and respondent alone may be the parties to the matrimonial matter. The Attorney General could not be a necessary party as there is no procedure by which he can be compelled to accept that role. He may or may not be given notice of the proceedings and, if given notice, he may or may not agree to be a party. However, even without his acquiescence it is clear that the Court can make a declaration under s.29 (notice of which must be remitted to an tArd Chláraitheoir) which will be binding on the parties and persons claiming through them though subject to whatever limitation arises from the provisions of subsection 8.

3. That the order of the 12th November, 1998 was not a final order, first, because the State was not bound thereby and secondly because Mrs Justice McGuinness recorded in her judgment of the 14th January, 1999 that she had at the conclusion of the hearing before her 
“directed that any criminal proceedings or investigations in relation to the validity of the marriage between the petitioner and the respondent should cease forthwith”.

It may or may not be contended that the learned trial Judge was not entitled to give that verbal direction and it may or may not be that the gardai would feel free to ignore it. Similarly it may be, as all parties accept, that ambiguities in the legislation may leave further problems to be resolved. However, these residual problems do not affect the fundamental proposition that the order and judgment of Mrs Justice McGuinness of the 12th November, 1998 and the 14th January, 1999 were final and conclusive and disposed of the issue between the parties to the proceedings before her. There is no basis on which she could amend that order less still could she amend it in such a way as to join a party for the acknowledged

-10-

________________________ page break ________________________

purpose of permitting or facilitating that party to appeal a judgment and order made in proceedings to which he was not a party; in which he had not been represented and that to present arguments to this Court which he had not made to the learned trial Judge.

Whilst I appreciate the proper concern of the Attorney General in relation to orders affecting the recognition of foreign divorces (or indeed domestic divorces) I am satisfied that there is no basis in law in which he can seek an adjudication by this Court in these proceedings on the matters which concern him.

I would dismiss the appeal and affirm the judgment and order of Mrs Justice McGuinness dated the 18th June, 1999.

- 11 -

THE SUPREME COURT
No. 1999/165
Denham J.
Murphy J.
Barron J.
Murray J.
Hardiman J.
BETWEEN
G. McG.
PETITIONER
AND

D.W.
RESPONDENT
AND

A.R.
NOTICE PARTY

Judgment of Mr Justice John L. Murray delivere delivered the 31st day of March, 2000.

This is an appeal in which the Attorney General seeks to set aside the order ot High Court refusing his application to bejoined as a notice party in the above entitled proceedings. It was a somewhat unusual application, having been made some four months after the order of the High Court in the substantive proceedings. The appeal concerns only a question of law as to the jurisdiction of the court to join the Attorney General at this stage to the proceedings which were before the High Court.

________________________ page break ________________________

The background to the application:

The background and chronology of events are to be found in the two judgments of Mrs Justice McGuinness dated 14th January 1999 and 18th June 1999. The essentials of those are as follows.

On the 27th October 1967 the petitioner, Mr. McG. married the notice party Ms. C (now A.R.) in Dublin. Both parties were domiciled and resided in Ireland at the time.

On the 11th April 1979 they entered into a deed of separation after the marriage had broken down. On the 20th August 1984 the petitioner issued divorce proceedings in England in respect of the foregoing marriage and a decree absolute was granted by the English Court on 12th February 1985. The English divorce was granted under English Law, on the basis that the notice party had at least one years residence in that country. Neither the petitioner nor the notice party claimed to have established domicile in England. (Subsequent to the divorce the notice party married Mr R. in England).

On the 25th November 1985 the petitioner, who was still domiciled and resident in Ireland, married the respondent Ms. D. W at a registry office in London. Ms. D. W was a British citizen domiciled in England. This marriage also broke down and the parties separated on an agreed basis.

Subsequent to all of the above the petitioner brought nullity proceedings in respect of his 1985 marriage in London, before the High Court which were to follow, in the words of the learned trial judge, “a somewhat unusual course”

2

________________________ page break ________________________

The citation having been issued on behalf of the petitioner on the 10th March 1998 it was served, together with the petition and affidavit on the respondent. The answer filed by the respondent essentially admitted the facts set out in the petition.

When the proceedings came on for hearing before the learned High Court Judge, counsel for the petitioner submitted that while the proceedings were in the form of a nullity petition, the real concern of the petitioner was to ascertain his true marital status according to the law of the State.

Apparently all parties, that is to say the petitioner, the respondent and the notice party, were in agreement that it would be preferable for the court to treat the petition for a declaration of nullity as if it were an application pursuant to section 29 (1) (d) or (e) of the Family Law Act 1995 in regard to the recognition of the 1985 English divorce of the petitioner and the notice party.

Section 29 of the 1995 Act is found in part IV of the Act which is entitled “Declarations as to Marital Status” and subsection (1) (d) and (e) grant jurisdiction to the High Court to declare whether, inter alia, a divorce obtained under the civil law of another State is or is not entitled to recognition in the State.

From that point on the nullity proceedings were abandoned, so to speak, and those proceedings proceeded as if they were concerned with an application pursuant to the relevant provisions of section 29 of the 1995 Act so as to determine whether the 1985 English divorce

3

________________________ page break ________________________

between the petitioner and the notice party having regard to their marriage, in Ireland in 1967, was entitled to recognition in the State.

By order dated the 12th November, 1998 the learned High Court Judge granted a declaration that the decree of divorce granted by the English Court on 12th February 1985 dissolving the marriage between the petitioner and the notice party to be a valid decree and entitled to recognition in the State.

In the interests of the parties and in order to bring certainty to their position the learned High Court Judge decided the issues and made her order promptly after the conclusion of the hearing and, because an important point of law was involved, she reserved the giving of reasons for her decision to a later date. On the 10th January 1999 she delivered her carefully reasoned judgment.

The important point of law involved was essentially that the leamed High Court Judge granted recognition to a foreign divorce based on the residency rather than the domicile of one of the parties in the foreign State. It is common case, and acknowledged by the learned High Court Judge, that this marked a significant change in the basis on which foreign divorces might be recognised in this country.

Two months later by way of notice of motion dated the 10th day of March 1999, the Attorney General applied to the High Court to be joined as a notice party in those proceedings. The affidavit grounding the notice of motion explained that the Attorney General had only become aware of the proceedings following publicity given to the aforesaid

4

________________________ page break ________________________

judgment. In the light of that judgment concern was expressed on behalf of the Attorney General “as to both the state of the law in relation to the recognition of foreign divorces and more particularly the effect to be given to the judgment ...”. If joined as a party the Attorney General expressed his intention to appeal the judgment and order of the High Court to the Supreme Court for final determination. He relied in his application on an inherent jurisdiction of the High Court.

In a judgment delivered on the 18th June, 1999 the learned High Court refused the Attorney General’s application to be joined as a notice party and it is from this judgment and order that the Attorney General appeals.

The Attorney General and Section 29

I think it would be useful at this stage to consider the role expressly attributed to the Attorney General by Section 29 of the 1995 Act in proceedings for a declaration pursuant to that section and the effect of an order under that section if he is not a party to the proceedings.

As a preliminary observation I would note that the provisions of section 29 concerning the role of the Attorney General are similar or analogous to provisions to be found in the Legitimacy Declaration (Ireland) Act, 1868 and the Status of Children Act, 1987. The relevant provisions of those Acts have not, so far as I am aware, been subject to judicial interpretation and I don’t propose to refer to them in detail.

5

________________________ page break ________________________

Suffice to say in the context of these proceedings and the 1995 Act that the status and importance of marriage as an institution in society is reflected in the fact that it is regulated by public law and expressly provided for in the Constitution which imposes on the State a duty to safeguard it.

The Constitution and the law reflect a shared value of society as to the status of marriage. A declaration as to marital status, made pursuant to section 29 (1) (a) - (e) may have implications for the force and effect of a marriage contracted, or purported to have been contracted, in Ireland.

Accordingly, proceedings pursuant to section 29 may well give rise to issues which have effect far beyond the relationship between the private parties to those proceedings and impinge on the State interest concerning the status of marriage as an institution.

It is entirely logical therefore that the Oireachtas, when enacting the 1995 Act, would have seen applications pursuant to section 29 of the Act concerning marital status as one ot those areas in which express provision should be made for the State interest to be represented through the Attorney General, as a Constitutional office holder, in accordance with procedures laid down in the Act. It was equally logical that the Oireachtas should limit thc binding effect of a judgment in such proceedings where the State or public interest was not represented as a party to them.

The provisions relevant to the role of the Attorney General under section 29 of the Act are as follows: -

6

________________________ page break ________________________

“S.29 (1) …

(4) The court may, at any stage of proceedings under this section of its own motion or on application to it in that behalf by a party thereto, order that notice of the proceedings be given to the Attorney General or any other person and that such documents relating to the proceedings as may be necessary for the purposes of his or her functions shall be given to the Attorney General.

(5) The court shall, on application to it in that behalf by the Attorney General, order that he or she be added as a party to any proceedings under this section and, in any such proceedings, he or she shall, if so requested by the court, whether or not he or she is so added to the proceedings, argue any question arising in the proceedings specified by the court.

(6) Where notice of proceedings under this section is given to a person (other that the Attorney General), the court may, of its own motion or on application to it in that behalf by the person or a party to the proceedings, order than the person be added as a party to the proceedings.

(7) …

(8) A declaration under this section shall be binding on the parties to the proceedings concerned and on any person claiming through such a party and, if the Attorney General is a party to the proceedings, the declaration shall also be binding on the State.
7

________________________ page break ________________________

(9)

(10) Where proceedings under this section, and proceedings in another jurisdiction, in relation to the same marriage have been instituted but have not been finally determined, the court may stay the first-mentioned proceedings until the other proceedings have been finally determined.”

What emerges from the foregoing provisions is that the High Court has no power, of its own motion, to join the Attorney General as a party to the proceedings. Indeed Section 29 (6) which gives, inter alia, power to the court of its own motion, to order the joinder as a party to the proceedings a person to whom notice of those proceedings has been given, expressly excludes the Attorney General from its ambit.

There are only two steps which the court may take, of its own motion, in relation to the Attorney General. Firstly, it may order that notice of the proceedings be given to the Attorney General and secondly require that he or she argue any question arising in the proceedings, whether or not he or she is added as a party.

The court has power to add the Attorney General as a party to the proceedings only if the Attorney General applies to be so added.

In effect, it is ultimately and exclusively a matter for the Attorney General to decide whether or not he should become a party to the proceedings. Certainly, the Attorney General is not in a position to make such an application unless he is aware of the proceedings. There

8

________________________ page break ________________________

is no requirement in the section for automatic notification of proceedings under this section, to the Attorney General. Notification is left to the discretion of the court. If such notice is given to the Attorney General evidently it does not follow that in any given case he will necessarily apply to be made a party.

In the course of the submissions on behalf of the Attorney General it was contended where, pursuant to Section 29, a declaration is sought that a foreign divorce was valid and entitled to recognition that “it is difficult to conceive of circumstances where the Attorney General would not be an appropriate notice party.” That may be a policy view of the Attorney General which would govern any decision whether or not to apply to the court to be made a party after having received notice of such proceedings but it is not one which is reflected in section 29 of the Act. Section 29 (8), without distinction as to the form of declaration granted under the section, specifically envisages that any such declaration may be (xranted so as to be binding on the parties to the proceeding and on any person claiming through such a party without the Attorney General being a party. The Act extends the binding nature of the declaration to include “the State” only if the Attorney General has been made a party to the proceedings. Accordingly the act expressly envisages a declaration of the nature granted in this case being granted without the Attorney General being made a party, albeit with limited effect as to its binding nature.

The position adopted by the parties in these proceedings is that they are satisfied to accept this limited effect of the declaration namely, that it is not binding on “the State”. Which organs or authorities of the State are envisaged by the notion “the State” as used in Section 29 is by no means clear. This was explicitly acknowledged by the Attorney General

9

________________________ page break ________________________

in the submissions made on his behalf. This lack of clarity in the Act is unsatisfactory. However, it is not an issue which arises in this application of a limited nature.

Submissions of the Attorney General

First and foremost the Attorney General relies on the inherent jurisdiction of the Court to add him as a party. It was contended that the courts possess a wide and fundamental jurisdiction to amend an order which had previously been made and reliance was placed on the judgment of this court in Belville Holdings v. Revenue Commissioners [1994] ILRM 29. In this context it was also submitted that the order of the High Court in these proceedings was not final and did not dispose of the rights of the parties in any meaningful or complete sense since that order was not binding on the State.

Secondly, he submits that although section 29 (4) of the Act confers a discretion on the High Court as to whether or not the Attorney General should be served with notification of the proceedings, that discretion having regard to the nature of the case before it, could, as a matter of law, only have been exercised one way, namely by giving such notification to him.

Finally, it was submitted on behalf of the Attorney General that the order of the High Court was in the form of a declaration and it is a principle of law that the courts lean against granting a declaration in circumstances where there is no legitimus contradictor. In this case, it was contended, that there was no true legitimus contradictor.

10

________________________ page break ________________________

Decision

The first question is whether the court has an inherent jurisdiction at all to join the Attorney General as a party to the proceedings which were heard and determined in the High Court. The second question, and this would only arise if the first is answered in the affirmative, is whether the court should exercise that jurisdiction.

Inherent Jurisdiction

The concept of inherent jurisdiction necessarily depends on a distinction between jurisdiction that is explicitly attributed to the courts by law and those that a court possess implicity whether owing to the very nature of its judicial function or its constitutional role in the administration of justice. The interaction between the express jurisdiction of the courts and their inherent jurisdiction will depend in each case according to the scope of the express jurisdiction, whether its source is common law, legislative or constitutional, and the ambit ot the inherent jurisdiction which is being invoked. Inherent jurisdiction by its nature onix arises in the absence of the express.

What we are concerned with in this case is the jurisdiction of the courts to join the Attorney General in proceedings brought pursuant to section 29 of the 1995 Act. I be jurisdiction of the courts to join the Attorney General as a party to such proceedings is expressly addressed in the provisions of section 29. Can the courts be called upon to exercise an unspecified inherent jurisdiction in the face of the jurisdiction delineated by the Oireachtas in section 29 concerning the Attorney General as a party?

11

________________________ page break ________________________

Where the jurisdiction of the courts is expressly and completely delineated by statute law it must, at least as a general rule, exclude the exercise by the courts of some other or more extensive jurisdiction of an implied or inherent nature. To hold otherwise would undermine the normative value of the law and create uncertainty concerning the scope ofjudicial function and finality of Court Orders. It may indeed be otherwise where a fundamental principle of constitutional stature is invoked against a statutory or regulatory measure determining jurisdiction, but that is not the case here.

The statutory provisions cited in the earlier part of this judgment had, inter alia, the following effects: -

(a) It laid down the circumstances and means by which the Attorney General could become a party in any case under section 29.

(b) It did not make it mandatory that he be joined in all or in any type of such case and expressly excluded such a mandatory power (section. 29 (6))

(c) It did not make it mandatory that the Attorney General be given notice in all or any type of application.

(d) It limited the powers of the Court to giving notice to the Attorney General or to requiring him to argue a specified point of law (even if not a party to the proceedings).

12

________________________ page break ________________________

(e) It provided for the eventuality in all cases under section 29 of the Attorney General not being a party.

It seems to me clear that the foregoing represent conscious choices of the Oireachtas in the enactment of the legislation in question.

They are express and complete providing for, on the one hand, the joinder of the Attorney General in certain circumstances and providing for the consequence of his non-joinder in all circumstances.

Having regard to the foregoing features of this case, I am of the view that neither the High Court nor this Court can attribute to itself some inherent jurisdiction going beyond the scope of that conferred expressly on the High Court by the Oireachtas in that Act.

The learned High Court Judge in my view was therefore correct in refusing the application of the Attorney General to be joined after the proceedings before her had ended.

It may be, with the benefit of experience, that the procedures laid down in the Act. particularly with regard to giving notice of proceedings to the Attorney General, are unsatisfactory but that is a matter for the Oireachtas.

One further observation. In certain circumstances the Attorney General maybe joined as a party to proceedings because there is some essential State or public interest which may be affected by their outcome. This was not a specific ground relied upon by the Attorney

13

________________________ page break ________________________

General in this case but in any event it seems to me one which can only arise in proceedings which are in being, which is not the case here and it may also be circumscribed by express statutory provisions.

A Final Order?

As regards a submission on behalf of the Attorney General that the order of the High Court in the proceedings was not a final order, I feel this can be dealt with on the basis of first principles. These were proceedings pursuant to statute according to which persons may seek certain declarations as to marital status and specifically in this case as to the status of a foreign divorce. This was the justiciable question between the parties before the High Court. What was determined by that court is binding on those parties, as envisaged by the statute, and not binding on the State. There has been no appeal, and since the order was made there is no justiciable question outstanding between the only parties to the proceedings. In short, the High Court has exercised its powers and jurisdiction to make the declaration sought in respect of parties specifically envisaged by the statute. The proceedings are at an end. It is perhaps not without significance that the application by the Attorney General to be joined as a party is not based on section 29 (5) of the Act as such, which requires that he be joined, on his application in any proceedings under the section. Of course it is quite logical that the Attorney General should not have sought to base his application on that section. It is self-evident that section 29 (5) envisages an application in proceedings which are in being before the High Court which, in my view, is manifestly not the case.

14

________________________ page break ________________________

As regards the submission made on behalf of the Attorney General that the order of the High Court should not be treated as final in that it did not determine completely the rights of the parties as it was not binding on the State I think it is sufficient to say that the High Court order completely disposed of ajusticiable question between parties in a manner and to an extent envisaged by the statute. The fact that its binding effect is limited to those parties and those claiming through them is a consequence of the statute and not of the order. In my view, the learned High Court Judge was also correct in finding that her order of 12th November 1998 was a final order in the proceedings.

Amendment of Final Order

In the written and oral submission it was also argued on behalf of the Attorney General that the courts possess “a wider and more fundamental jurisdiction” to amend an Order which it had previously made. For this proposition reliance was placed on Belville Holdings v. Revenue Commissioners [1994] ILRM 29.

In that case Finlay C.J., in the judgment of the court, did acknowledge that there is, apart from the correction of clerical errors and the like as provided for in Order 28, Rule 11, of the Superior Court Rules “a wider and more fundamental jurisdiction in a court to amend an order which it has previously made, even though that order is in the form of a final order and has been perfected”. The former Chief Justice envisaged “that it is only in special or unusual circumstances that an amendment of an order passed and perfected, where the order is of a final nature, should be made by the court. The finality of proceedings both at the level

15

________________________ page break ________________________

of trial and, possibly more particularly, at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law and should not lightly be breached”.

As regards the exercise of that “wider and more fundamental jurisdiction” the learned Chief Justice set out the principles which governed that question by reference to a decision of the English Court of Appeal in In re Swire 30 ChD 239. He cited certain passages from the judgments of the Court of Appeal as expressing the principle according to which a court may amend a final order such as “the order as passed and entered contains an adjudication upon that which the court in fact has never adjudicated upon...”; “the order ... does not express the order actually made, . ..“; “an order, ... maybe amended by the court so as to carry out the intention and express the meaning of the court at the time when the order was made,...”.

The judgment of this Court in that case makes it clear that the fundamental pox~er o amend a final Order is limited to correcting, so to speak, the final judgment so as to ensure that it accurately reflected the adjudication and the intention of the court which made it.

The judgment in that case was approved by this Court in The Attorney General v The Open Door Counselling Ltd. (No. 2) [1994] 2 IR 333. (In the latter case the court did not exclude interference with a final order where there was a fundamental flaw in the administration ofjustice such as fraud, which does not arise here).

In principle, therefore, the jurisdiction of the courts to alter a final order is limited to amending it so as to give true and final effect to what the court had actually decided.

16

________________________ page break ________________________

The application of the Attorney General here is of a wholly different nature seeking as it dQes to reopen the proceedings to enable him to bring an appeal to this court against the judgment and order of the High Court. For these reasons I am of the view that the argument made on behalf of the Attorney General is not well founded.

Remaining submissions of the Attorney General

The second and third submissions of the Attorney General referred to above, concerning the exercise by the learned High Court Judge of her discretion in the proceedings not to serve notice on the Attorney General and the absence therein of a legitimus contradictor relate to matters which arose in the course of the proceedings before the High Court and in effect seek to call in question the validity of her judgment and order. In so far as they are relevant at all to this application they can only in my view, be relevant to the second question, namely, whether this court, if it has an inherent jurisdiction, should accede to the Attorney General’s application and exercise that jurisdiction.

Having concluded that the court has no such jurisdiction it is not necessary to address those arguments. Nor, needless to say, has it been necessary to address the substantive issue concerning the legal basis for the recognition of foreign divorces which arose in the High Court. It may indeed be desirable, from the point of view of clarity and certainty, that the principles of law to be applied in such a case be the subject of a decision of this Court (although the limited nature of its binding effect must at least mean that it can only have legal effect as concerns the parties in that case and those claiming through them). It is not an

17

________________________ page break ________________________

unusual circumstance for clarity or certainty in the law to await a decision of a court of final instance.

However, the issue must be brought before this Court in proceedings where the Court has jurisdiction.

For all the foregoing reasons, I am of the view that the application of the Attorney General should be refused.

18