R v West London Magistrates' Court, ex parte Emmett

JurisdictionEngland & Wales
CourtFamily Division
Judgment Date1994

WARD, J

Divorce – decree absolute – decree not effective until endorsement made on decree nisi.

Financial provision – reciprocal enforcement – parties living in Eire – Irish court making order for periodical payments by husband to wife – husband moving to live in England – order registered in English court – husband obtaining divorce in England – whether Irish order enforceable in England after decree absolute of divorce.

Reciprocal enforcement – Irish order for periodical payments by husband to wife – husband moving to England – order registered in English court – husband subsequently obtained divorce in England – whether Irish order enforceable after divorce.

The parties married in 1959 in the Republic of Ireland and lived together there until 1978 when the husband left home. They had five children who were aged from 18 to 4 at the time of the separation and were now all adults. The husband made voluntary payments for the children's maintenance until 1980. In 1985 the Dublin district court made an order that the husband should pay maintenance to the wife for herself and the two younger children. In 1986, as the husband was then resident in England, the order was registered in an English magistrates' court pursuant to s 6 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 as amended by the Reciprocal Enforcement of Maintenance Orders (Republic of Ireland) Order 1974. The husband did not comply with the order. There were enforcement proceedings in 1987 when arrears of over £4,000 were remitted.

The husband commenced divorce proceedings in England. The wife made an application under s 10(2) of the Matrimonial Causes Act 1973 to protect her financial position. In February 1988 a decree nisi was granted. Further enforcement proceedings were taken in the magistrates' court and eventually, on 20 April 1989, the magistrates found that the arrears then owing had accrued due to the husband's culpable neglect. He was committed to prison for six weeks, the warrant being suspended on terms which were later met. On 16 June 1989, in the divorce proceedings, it was agreed that there should be a clean break on payment of a lump sum and the wife would withdraw her application under

s 10(2) of the 1973 Act so that a decree absolute could be made. By an error of the court no order was drawn to that effect so no decree absolute was made that day. The error was not rectified until the matter was again before the court in 1990. The divorce decree was then made absolute with effect from 20 March 1990. In July 1990 the divorce court ordered the husband to pay a lump sum to the wife in full discharge of all the wife's claims for financial provision and in full discharge of any liability in respect of current payments under the Irish order registered in the English magistrates' court. In January 1991 the husband appeared before the magistrates' court in respect of arrears under the Irish order. He submitted that the Irish order could no longer be enforced by reason of the irreconcilability between that order and the English order for divorce, either from 16 June 1989 when it should have been made absolute or from 20 March 1990 when it was made absolute. The magistrates did not accept those submissions and committed the husband to prison for 14 days suspended upon payment of £500 arrears by 7 March 1991.

The husband appealed by way of case stated.

Held – allowing the appeal: (1) A divorce decree nisi was made absolute when the proper officer made an endorsement to that affect on the decree stating the precise time at which it was made absolute: r 67(1) of the Matrimonial Causes Rules 1977; now r 2.51 of the Family Proceedings Rules 1991. In view of the court's error on 16 June 1989 in failing so to endorse the decree nisi, the decree was not made absolute on that date. Consequently, the parties remained married to each other and the Irish order remained extant after 16 June 1989.

(2) The error was corrected at the hearing on 20 March 1990. On that date the divorce decree was made absolute and the parties were no longer married to each other. By s 6(5) of the Maintenance Orders (Reciprocal Enforcement) Act 1972 as amended by the Reciprocal Enforcement of Maintenance Orders (Republic of Ireland) Order 1974, an order made by a court in the Republic of Ireland should not be registered in a court in England if it was irreconcilable with a judgment given in the United Kingdom between the same parties. It had been held in Macaulay v Macaulay [1991] FCR 483 that it would be wholly undesirable for the English court to distinguish between s 6(5) of the 1972 Act as amended by the 1974 Order and Article 27(3) of the Brussels Convention implemented into English law by Sch 1 to the Civil Jurisdiction and Judgments Act 1982. Article 27(3) of the Brussels Convention provided that a judgment of a Contracting State should not be recognized in another Contracting State if it was irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition was sought. Article 34 of the Convention provided that enforcement of a judgment of one Contracting State might be refused if it was irreconcilable with a judgment given in a dispute between the same parties in the State where enforcement was sought. The decision in Macaulay further required the court in the present case to follow the decision of the European court in Hoffman v Kreig [1988] ECR 645. Consequently, following those decisions, the court was obliged to hold in the present case that the judgment of the Irish court was irreconcilable with the judgment in the divorce proceedings in England; and, therefore, the court had to rule that the Irish order ceased to have effect upon decree absolute on 20 March 1990.

(3) In this case, the Irish order and the English order in July 1990 for a lump sum would have become mutually exclusive once the lump sum had been paid on the basis that it would be in full discharge of any liability under the Irish order. Also, although the decree absolute extinguished the Irish order it did so only with regard to payments which would have fallen due after the decree absolute. Any arrears outstanding at the date of the decree absolute were recoverable.

Statutory provisions referred to:

Administration of Justice Act 1970, Sch 8, para 11.

Civil Jurisdiction and Judgments Act 1982, 2.5 and Sch 1: The Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, as amended, ("the Brussels Convention"), Articles 1, 26, 27, 28, 31, 34 and 36.

Domestic Proceedings and Magistrates' Courts Act 1978, s 4.

Family Proceeding Rules, 1991, r 2.51.

Magistrates' Courts Act 1980, s 150(1).

Magistrates' Courts (Civil Jurisdiction and Judgments Act 1982) Rules 1986, rr 4, 5, 7 and 9.

Maintenance Orders (Reciprocal Enforcement) Act 1972, ss 6, 8, 9 and 10 as adapted and modified by the Reciprocal Enforcement of Maintenance Orders (Republic of Ireland) Order 1974.

Matrimonial Causes Act 1973, s 10(2).

Matrimonial Causes Rules 1977, r 67(1).

Cases referred to in judgment:

Hoffman v Krieg (Case 145/86); [1988] ECR 645.

Macaulay v Macaulay [1991] FCR 483; [1991] 1 WLR 179; [1991] 1 All ER 865.

John Waters for the husband.

Robin Spon-Smith for the wife.

MR JUSTICE WARD.

This is an appeal by way of case stated against the order suspending the issue of a warrant of commitment of Mr Charles Emmett to prison for 14 days made after he had been found culpably to have neglected to pay maintenance to his former wife, Helen Emmett. For convenience, I shall continue to call them husband and wife.

They married on 3 August 1959 in Eire and lived and cohabited together in the Republic of Ireland until about November 1978, when the husband left their Irish matrimonial home and began to cohabit with Monica Jones, with whom he is still living. Five of the children of the parties survive. They are David, now 31; Karl, now 29; Desmond, 27; Naill, born on 1 July 1967, now 25; Fergus born 13 January 1973, now 20. The wife and children, then ranging in age from 18 to 4, remained at the former matrimonial home and there was a voluntary arrangement for their maintenance. When the husband's business failed in February 1980 that arrangement ended. In

may 1980 they came to some agreement relating to the matrimonial home, which was not implemented by the husband. In May 1984 the court in Ireland declared that the wife was beneficially entitled to the whole of the interest in that property. In January 1985 a summons was issued out of the district court in Dublin for a maintenance order for herself and the two youngest boys. That application was made under the Family Law (Maintenance of Spouses and Children) Act, 1976, which gives the

irish courts jurisdiction to make such orders "on application to it by a spouse". On 20 June 1985 the Dublin district Court ordered that the husband pay the wife maintenance at the rate of £IR50 per

week for herself until further order and £IR25 per week for each of the children Naill and Fergus whilst under the ages respectively of 21 and also respectively whilst receiving full-time education.

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