The High Court has ordered a husband to provide security for his wife’s costs in nullity proceedings, after finding he had a defence on the merits and that delay in the case weighed strongly in favour of making the order.
The judgment, delivered by Mr Justice Henry Abbott on 3 June 2011, concerns proceedings over a marriage that took place in Germany in 1970. A Circuit Court judicial separation order was made in Ireland in 1991. The wife challenges the validity in Ireland of a divorce procedure in the Dominican Republic. The husband had initially relied on a Dominican Republic divorce as valid in Ireland, then amended his defence and counterclaim to seek a decree of nullity.
The wife applied for security for her costs in the nullity proceedings, which were due to be heard before the divorce proceedings. The court also considered an alternative request for costs to be paid as the case proceeded. The husband, who represented himself at the hearing, argued that security for costs should not apply to proceedings about personal status, and that requiring it would restrict his access to the courts. He said his business had collapsed and he had limited means after a divorce in Israel and the sale of his family home. He also referred to maintenance payments and a London-based pension fund.
Justice Abbott rejected the argument that security for costs was unavailable in proceedings about personal status. He found the specific rule allowing costs to be paid as the case proceeded did not apply because the wife had some separate estate, including a home, car, small share portfolio, a small pension and modest income.
Under the rule governing security for costs, the court also had to be satisfied that the wife had a defence on the merits. The judge found that requirement met on three grounds: the husband’s participation in the Irish judicial separation proceedings; his earlier reliance on the existence of the marriage in asserting the Dominican Republic divorce; and the wife’s assertions disputing that there was any lack of capacity or coercion surrounding the marriage. These were grounds on which the court found a defence could be advanced; the judgment did not determine the underlying nullity or divorce claims.
The court said the pension fund did not provide adequate comfort that a costs award could be enforced. It also rejected the husband’s argument that the fund connected him to European Union protections for people resident or national in a member state.
In exercising its discretion, the court gave significant weight to delay since the proceedings began in 2007. It noted that nullity had not been raised as a defence until after the husband’s solicitors withdrew in 2009, and that the wife had pursued the divorce case for nearly four years without obtaining an affidavit of means from him. The order requires security for costs; the wife may apply to the Master to have its terms fixed. The judgment does not set the amount of security.