The High Court refused a wife’s application for security for costs in her husband’s nullity proceedings, finding that she had not shown he was ordinarily resident outside the jurisdiction. The court also refused her alternative application for costs as the case proceeded, citing her assets.
The ruling by Mr Justice Abbott concerned an application made before the nullity claim had been decided. The husband petitioned on 2 July 2010 for a decree of nullity in relation to the parties’ marriage ceremony on 14 May 2004. The wife sought an order for her costs to date and further costs as the case proceeded, or, alternatively, an order requiring the husband to provide security for her costs.
The wife argued that the husband was not resident in Ireland and lacked assets here, while property was held in a trust beyond the reach of the proceedings. She also said he had resisted further financial disclosure in related judicial separation proceedings. The husband disputed that account, saying he was domiciled in Ireland, held an Irish passport and had assets here, although he acknowledged substantial debts.
The court found that the wife had a prima facie defence to the nullity claim. Her account of the marriage and the parties’ relationship contradicted the husband’s grounds, which included alleged non-consummation, psychological inability to have sexual relations, incapacity to sustain a marital relationship and lack of true consent. The judge stressed that the eventual outcome of the nullity case would depend on the evidence and law.
But the wife’s prima facie defence did not establish the separate residence requirement for security for costs. The judge said the husband’s non-resident tax status did not by itself show he was ordinarily resident outside the court’s jurisdiction. He considered his Irish property, Irish domicile and passport, and the court processes connected with his dealings with the National Asset Management Agency and banks. The wife’s application therefore failed on the residence ground.
The judge added that, even if the residence test had been met, he would not exercise the court’s discretion to order security, given the husband’s apparent amenability to court processes. He also refused the request for costs as the case proceeded: it had not been seriously pressed, and the wife’s disclosed assets indicated a substantial personal estate. He said such costs might be considered in a case involving vexatious or uncooperative conduct that wasted time, but did not suggest that was occurring here.
The court refused both forms of relief sought. The judgment did not determine the nullity petition or the underlying allegations.