Phelan v Phelan

• Jurisdiction: South Africa
• Judge: Cleaver J
• Judgment Date: 14 June 2006
• Citation: 2007 (1) SA 483 (C)
• Docket Number: 821/2005
• Counsel: L Weinkove SC (with B D J Gassner) for the plaintiff. R D McClarty SC (with L Buikman) for the defendant.
• Court: Cape Provincial Division

Cleaver J:

[1] The plaintiff has instituted a matrimonial action against the defendant in which she claims divorce, custody of three children born of the union with the defendant and maintenance for D herself and her children. The relief that she claims stems from a marriage entered into between the parties in Australia. In addition, she claims repayment of the sum of €1 337 386, said to have been lent and advanced by her to the defendant. E

[2] The defendant denies that the marriage entered into by the parties in Australia was valid. As to the alleged loans, he contends that the money paid to him by the plaintiff was his own money and that the agreement in terms whereof the plaintiff had received the money was a sham agreement which, to the knowledge of the plaintiff, had been entered into with the object of protecting the plaintiff's F money from his creditors. The defendant accordingly denies that he is liable to refund any money to the plaintiff.

[3] On 16 February 2006, and by agreement between the parties, an order was granted in terms of Rule 33(4) of the Rules of Court to the effect that the issue of the validity of the parties' G marriage and the issue of the loans claimed would be determined separately before the remaining issues in the divorce action are determined.

The validity of the marriage

[4] The plaintiff was previously married to Paul Sweeney in Italy and H the defendant was previously married to Marie Phelan, also in Italy. Defendant and Marie Phelan were Irish citizens and domiciled in Ireland.

[5] In August 1993 the plaintiff obtained a divorce from Paul Sweeney in the Dominican Republic. The relationship between the I defendant and Marie Phelan broke down and the defendant and plaintiff began a relationship. At the time divorce was not recognised in Ireland. The defendant then commenced proceedings against his wife Marie Phelan in the Dominican Republic and obtained a divorce from her in that country on 16 April 1996. Thereafter the plaintiff and the defendant J

Cleaver J

underwent a ceremony of marriage in Australia on 29 June 1996 and three boys, now aged eight and six, were born A from this union. The youngest two are twins. The ordinary residence of the plaintiff and the defendant at the time of the commencement of their relationship, the time of their seeking divorces in the Dominican Republic and at the time of the ceremony of marriage which the parties underwent in Australia, was the Republic of Ireland. B

[6] The parties are agreed that the applicable law that determines the validity of the marriage which they concluded in Australia is that of New South Wales, Australia (lex loci celebrationis).

[7] The defendant called an expert on Australian law, Mr Max Meyer, to support his contention that the marriage in Australia was not C valid. The only evidence relied upon by the plaintiff regarding the validity of the parties' marriage was the marriage certificate obtained in New South Wales, Australia. D

[8] At the conclusion of the hearing, the following agreement was reached between the parties in regard to the issue of the validity of the marriage:

[8.1]

The plaintiff admits that in accordance with the current Irish law, the divorces obtained in the Dominican Republic are not recognised and the marriage ceremony entered into between the parties was not valid as neither party had the capacity in Irish law to E enter into a legally binding marriage.

[8.2]

This Court, when determining the validity of the marriage concluded between the parties in Australia, must assume that the Dominican Republic divorces were validly obtained by the parties in F that country.

It was also agreed that in the event of my finding that the marriage of the parties is valid (based on the assumption that the Dominican Republic divorces were validly obtained), the matter would be postponed so as to enable the defendant to lead evidence with a view to establishing that the divorces obtained in the Dominican Republic were in fact invalid. G

[9] The plaintiff admitted Mr Meyer's qualifications to testify as an expert on Australian law. He is a senior lawyer in a firm specialising in family law in Sydney, Australia. The plaintiff did not lead any expert evidence regarding the law in Australia and relied only on the cross-examination of Mr Meyer. His evidence was to the effect H that the law relating to married persons and their relationship to one another is set out in the Family Law Act, 1975 (the Act), a law of the Commonwealth of Australia, which applies in each of the Australian states. The law relating to the recognition of what are in the Act referred to as 'overseas decrees' is set out in s 104 of the Act. Section 104(3) of the Act records a number of factors which, I if applicable, would permit a divorce granted in an overseas jurisdiction to be recognised in Australia. All the subsections of s 104(3) have to do with either party to a marriage being ordinarily resident in the Dominican Republic, the Dominican Republic having been the last place of cohabitation of the parties, either party J

Cleaver J

being domiciled in the Dominican Republic, citizenship of the Dominican A Republic and in the case of ss (f), a combination of factors. Since it is clear from the evidence which I heard that neither the defendant nor Marie Phelan ever set foot in the Dominican Republic, none of the criteria required for the divorce to be recognised in Australia as set out in s 104(3) were fulfilled. B

[10] Section 104(5) of the Act does, however, create a separate ground upon which a foreign divorce may be recognised in Australia. It provides:

'Any divorce or any annulment of a marriage, or any legal separation of the parties to a marriage, that would be recognised as valid under the common-law rules of private international law but to C which none of the preceding provisions of this section applies shall be recognised as valid in Australia, and the operation of this subsection shall not be limited by any implication from those provisions.'

Mr Meyer testified that in Australia two common-law principles would, if applicable, permit recognition of the Dominican Republic divorce in Australia even if recognition could not be afforded in terms D of s 104(3) of the Act. He identified these principles as being those of reciprocity and what he termed the 'real and substantial' connection.

[11] The reciprocity principle stems in Australia from the decision of the Court of Appeal in Travers v Holley and E Holley, [1] where the Court held that the domicile of both spouses at the time of the proceedings was not the sole test of jurisdiction in divorce, as had previously been the case. Prior to Travers v Holley the English Courts had not recognised a decree of a foreign Court unless the parties were at the time of the proceedings domiciled in the jurisdiction of the foreign Court, or if domiciled elsewhere, such decree would have been F recognised by the law of the domicile. The position in England had been altered by statute which provided that where a wife had been deserted by her husband and the husband had immediately before the desertion been domiciled in England and Wales, the Court would have jurisdiction for the purpose of any proceedings. In Travers v Holley the G wife had been granted a divorce in New South Wales on the grounds of her husband's desertion even though the husband had abandoned his domicile of choice in New South Wales on a date after the desertion. In the course of his judgment Hodson LJ expressed himself as follows (at 799H - 800D):

'It is unnecessary to consider the effect of these later statutory provisions since, at the material time when the New South H Wales proceedings were instituted, the Act of 1937 was in force and s 13 of this Act corresponds in substance with the provision under which the New South Wales court claimed jurisdiction between the parties to this appeal. It seems to me, therefore, that Parliament has cut the ground from under the argument put forward on behalf of the husband. If English courts will only recognise foreign decrees of divorce where the parties are domiciled in the territory of the foreign I court at the time of the institution of proceedings because that is the jurisdiction which they themselves claim, what is the situation when the courts of this country arrogate to themselves jurisdiction in the case of persons not domiciled here at the

Cleaver J

material date? It must surely be that what entitles an English court to assume jurisdiction must be A equally effective in the case of a foreign court.

Lord Watson in the Le Mesurier case (1) used the following language ([1895] AC 528):

''. . . a decree of divorce a vinculo, pronounced by a court whose jurisdiction is solely derived from some rule of municipal law peculiar to it forum, cannot, when it trenches upon the interests of any other country to whose tribunals the spouses were B amenable, claim extra-territorial authority.''

Conversely, it seems that where it is found that the municipal law is not peculiar to the forum of one country, but corresponds with a law of a second country, such municipal law cannot be said to trench on the interests of that other country. I would say that where, as here, there is in substance reciprocity, it would be contrary to principle and C inconsistent with comity if the courts of this country were to refuse to recognise a jurisdiction which mutatis mutandis they claim for themselves.'

[12] Travers v Holley was expanded on in a later decision of the House of Lords in Indyka v Indyka. [2] In Indyka, the husband had married his first wife in Czechoslovakia. Both were Czech nationals D domiciled in Czechoslovakia. The husband, who had joined the Czech army in 1939, later joined Polish forces and at the end of the war he was demobilised in England where he...