High Court: Dublin court had jurisdiction in divorce case because solicitor husband acted in superior courts
The High Court has ruled that the Dublin Circuit Court was wrong to refuse to hear a divorce application on the basis that the husband, a solicitor, did not carry on his profession in the county.
About this case:
- Citation: IEHC 530
- Court:High Court
- Judge:Mr Justice John Jordan
The couple lived outside Dublin and the husband was based in the south-west of the State. As such, the man objected to jurisdiction under section 38(3) of the Divorce Act 1996.
Delivering judgment in the case, Mr Justice John Jordan stated that it would do a “significant injustice to the plain meaning” of section 38(3) if he upheld the refusal of jurisdiction.
As a solicitor in a “large firm” and working in the superior courts, the court held that the husband carried on his occupation in Dublin. Accordingly, the court allowed the appeal and granted the wife 75 percent of her costs of the appeal with no stay on execution.
The couple married in Cork in November 2012. Divorce proceedings were issued by the wife in July 2021 in the Circuit Family Court in Dublin. During the proceedings, the husband claimed that the Dublin Circuit Court did not have jurisdiction under the Divorce Act 1996 to hear the application.
Section 38(3) of the 1996 Act stated that jurisdiction may be exercised by a judge of the Circuit “in which any of the parties to the proceedings ordinarily resides or carried on any business profession or occupation”.
It was contended that the husband did not work in Dublin and, since the couple did not live in the jurisdiction, it was submitted that the application was improperly issued in the Dublin family courts. This submission was accepted by the trial judge, who struck out the wife’s proceedings.
The wife brought an appeal against the ruling in the High Court. It was submitted that the husband was a solicitor in one of the large firms and in fact worked in Dublin. The wife relied on the husband’s public professional profile which described his work in commercial litigation in the superior courts, including the Commercial Court which is based exclusively in Dublin.
It was also said that the husband worked as a tutor in the Law Society, although this was occasional work which only yielded about €2,000 per year.
As such, the wife argued that section 38(3) conferred jurisdiction on the Dublin Circuit Court to hear the case.
In an ex tempore decision delivered in April 2022 but only published this week, Mr Justice Jordan held that the Dublin court did have jurisdiction to hear and determine the divorce application.
The court accepted that the husband’s internet profile was designed to generate business and good publicity for himself, but nonetheless it laid out his experience in judicial review, injunctions, commercial disputes and personal injury actions.
The court held that the reference to the superior courts and to the Commercial Court was significant because these courts were based in Dublin on a permanent basis, apart from occasional provincial sittings. It was also noted that the work for the Law Society was very minimal, but it was still work that was based in Dublin.
As such, the court held that the husband carried on his profession in Dublin, which conferred jurisdiction to the courts in that area. In reality, it was a “very straightforward” provision and it would be an injustice to say that he did not work in Dublin if his practice was based on Superior Court work, the court said.
The court commented that it could appreciate the “mischief that might be caused if litigants were to set about forum shopping and trying to find the most beneficial venue for proceedings and using for that purpose a tangential or very minor connection with the jurisdiction chosen in terms of the business profession or occupation of the respondent”. If jurisdiction was asserted on a tenuous basis, the court may strike out the proceedings to prevent abuse of process.
However, this was not in issue here. While the husband was based in the south-west, he worked in Dublin in the superior courts. As such, the Circuit Court was wrong to decline to hear the matter.
On the issue of costs, the court awarded 75 per cent of the costs of the appeal to the wife. The husband requested a stay on the execution of the costs order until the conclusion of the proceedings, but this was refused by the court. It was held that the appeal arose out of the “misconceived objection” and “should not have occurred”. Accordingly, liability for the costs of the appeal would arise on the conclusion of the adjudication process.
The court held that the Dublin Circuit Court had jurisdiction to hear and determine the divorce application on the basis that the husband carried on his profession in Dublin.
M v. M  IEHC 530