Anonymised Summary of Judgment — High Court (Family Law)
Factual and Procedural Background
The Applicant issued a Special Summons on 11 March 2024 seeking, among other reliefs, redress under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ("the 2010 Act"). The endorsement on the summons alleged residence at addresses in both England and Ireland and that the parties had cohabited since mid-2020. The parties had a child born in November 2023. The Applicant alleges she was the primary carer for the child and that the parties shared time between homes in England and Ireland. The Respondent disputes the extent and nature of any cohabitation in Ireland and contends that the Applicant and child are habitually resident in England.
A motion brought by the Respondent on 12 September 2024 sought, inter alia, (1) a declaration that the Irish court could not exercise jurisdiction under section 196(3) of the 2010 Act because the Applicant had not pleaded or adduced evidence of being ordinarily resident in the State throughout the relevant one-year period, and (2) striking out of the Applicant's proceedings under the 2010 Act for the same jurisdictional reason.
Extensive affidavit evidence and oral testimony were heard from both parties, together with documentary exhibits. The Court (Judge Jackson) was asked to determine, as a preliminary issue, whether the Applicant was "ordinarily resident" in Ireland throughout the one-year period preceding the end of the relationship for the purposes of section 196(3) of the 2010 Act. The judgment records detailed findings of fact, credibility assessments and application of legal principles to the contested evidence.
Legal Issues Presented
- What is the date of the end of the relationship of the parties (a factual question relevant to the statutory period)?
- Was the Applicant ordinarily resident in Ireland throughout the one-year period prior to the end of the relationship (the statutory requirement in section 196(3) of the 2010 Act)?
- What is the meaning of the word "throughout" in section 196(3) of the 2010 Act (whether "throughout" permits mobility between two ordinary residences and whether continuous residence in a single place is required)?
Arguments of the Parties
Applicant's Arguments
- The Applicant asserted that the parties lived together from about September 2020 and that they shared time between homes in Ireland and England; she relied on evidence of decorating, furnishing and running the Irish rental property, running households in both jurisdictions, organising family events in Ireland and England, and plans for a joint life (including marriage plans and a proposed joint property purchase in Ireland).
- The Applicant relied on case law (notably A v B [2021] IEHC 802) to argue that "throughout" in section 196(3) accommodates ordinary residence in more than one place and does not require continuous presence in one location for the entire year.
- She placed emphasis on various exhibited communications, photographs and other documents said to show an ongoing shared family life between the two jurisdictions and submitted that those facts supported a finding of ordinary residence in Ireland for the relevant period.
Respondent's Arguments
- The Respondent contended that the burden of proof on section 196(3) lies with the Applicant and that the Applicant's evidential showing was deficient. He asserted that objective indicators showed the Applicant was ordinarily resident in England, not Ireland (English bank accounts, English tenancy in the Applicant's sole name, English-based healthcare, absence of Irish PPS number or utility accounts, etc.).
- He argued that the Applicant's contact with Ireland was visitation or limited trips rather than ordinary residence, and he produced a chart and travel records purporting to show short visits and a small total number of days in Ireland in the relevant twelve-month period.
- The Respondent emphasised inconsistencies and lack of corroboration in the Applicant's affidavit evidence and relied on established principles for determining "ordinary residence" (including the objective Chubb factors) to submit that the statutory requirement was not satisfied.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Chubb European Group SE v. The Health Insurance Authority [2020] IECA 91 |
Comprehensive exposition of the legal principles applicable to "ordinary residence": objective proof focus; factual inquiry; factors to consider (settled abode, settled purpose, continuity, possible multiple ordinary residences, emphasis on objective evidence). |
The Court applied the seven matters enunciated in Chubb as the guiding framework for determining whether the Applicant had ordinary residence in Ireland during the relevant period and evaluated the evidence against those factors. |
| R v Barnet London Borough Council ex parte Shah [1983] 2 AC 309 |
Quoted definition (Lord Scarman): ordinary residence refers to an abode adopted voluntarily and for settled purposes as part of the regular order of life for the time being. |
The Court cited Shah (with approval in Chubb) when considering whether the Applicant had a settled and usual place of abode in Ireland and when assessing the settled purpose criterion. |
| A v B [2021] IEHC 802 |
Consideration of the meaning of "throughout" in section 196(3), including that a person may be ordinarily resident in more than one place and that "throughout" need not require continuous presence in a single residence for the whole year. |
The Court agreed with the dictum in A v B that "throughout" permits due mobility and that ordinary residence may exist in more than one place; nonetheless it applied the qualitative test from Chubb to the evidence and found the statutory test not met here. |
| Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147 |
Principle favouring interpretation that allows a court to exercise jurisdiction and facilitate a legal remedy where legislation can be read in two ways (general interpretive principle cited in A v B). |
The Court recorded the Anisminic principle as part of the interpretive backdrop to "throughout" but applied it within the caution that substantive ordinary-residence facts must still be established. The Court accepted the pragmatic approach earlier expounded in A v B. |
| Western Health Board v. KM [2002] 2 I.R. 493 |
Referenced as part of remedial statute construction (cited in A v B). |
The Court referenced Western Health Board to support the approach to interpreting remedial statutory schemes but nevertheless required the Applicant to satisfy the ordinary-residence factual test. |
| DC v DR [2015] IEHC 309 |
Contextual citation regarding interpretation of the 2010 Act as remedial and relevant to statutory construction. |
The Court noted the decision in DC v DR as part of the interpretive discussion but applied the Chubb factors in the factual determination. |
| MW v DC [2017] IECA 255 and XY v ZW [2019] IEHC 257 |
Cases referenced (in footnote) concerning the continuity requirement under section 172 of the 2010 Act and judicial consideration of duration/continuity in relationships (contextual only). |
The Court noted these authorities in footnote as examples of judicial consideration of duration/continuity in other contexts; they were not determinant of the preliminary jurisdictional issue here. |
| Wachman and Ors v. Barne Estate and Ors [2025] IEHC 491 |
Dictum regarding the fallibility of human memory in litigation (used to caution against undue reliance on uncorroborated recollections). |
The Court relied upon the observation to emphasise the importance of objective corroboration in assessing the Applicant's evidential assertions about residence and activities. |
| Deutsche Bank v. Murtagh (cited in Chubb) |
Principle that subjective intention is not determinative; objective facts are critical in ascertaining ordinary residence. |
The Court applied the same objective-evidence approach in evaluating the Applicant's claims about Ireland residence. |
| Quinn (cited in Chubb) |
Authority for capacity to be ordinarily resident in more than one place absent legislative provision to the contrary. |
The Court accepted that ordinary residence in more than one place is possible but required the Applicant to prove the qualitative elements necessary to establish that status in Ireland. |
Court's Reasoning and Analysis
The Court proceeded in structured fashion. It first identified the three central issues to be addressed: the date of relationship termination (a factual matter), whether the Applicant was ordinarily resident in Ireland during the relevant period (January 2023 to March 2024 for the purposes of section 196(3)), and the meaning of "throughout".
The Court set out the legal test for "ordinary residence" largely by reference to the detailed exposition in Chubb, adopting the seven matters identified there (settled and usual place of abode; adoption of an abode for settled purposes; continuity; possibility of more than one ordinary residence; emphasis upon objective evidence over subjective intention; and that the test is not a long-term "real home" comparison).
On the meaning of "throughout" in section 196(3), the Court agreed with the dictum in A v B that "throughout" does not necessarily demand continuous presence in a single residence for the entire year and that a person may be ordinarily resident in more than one place; a pragmatic approach permitting mobility is appropriate provided the qualitative elements of ordinary residence are satisfied.
Applying the Chubb factors to the evidence, the Court undertook a detailed factual analysis and credibility assessment. Key components of that factual analysis were:
- Assessment of documentary evidence: the Applicant's bank accounts, tenancy and many financial indicators were England-based; affidavits of means and welfare were sworn in England before an English solicitor; payments, debts and credit facilities were recorded in sterling and linked to England.
- Evaluation of corroboration: the Court found a relative paucity of objective corroboration of the Applicant's alleged settled Irish residence (no Irish bank accounts, no PPS number, no Irish utilities in her name, no evidence of Irish healthcare registration, no lease in her name for Irish property, limited evidence of personal belongings left in Ireland).
- Examination of travel patterns: competing assertions and exhibits (including a respondent-prepared chart and flight/travel records) were considered. The Court found the Respondent's chart broadly reliable on the issue of days spent by the Applicant in Ireland during the relevant period (figures ranging from 19 to 33 days in 2023 were presented by the parties; the Court considered the parties' evidence and found the chart broadly accurate).
- Consideration of the qualitative nature of involvement in the Irish household: the Applicant's asserted role in decorating, furnishing and "running" the Irish home was disputed by the Respondent; the Court found inconsistencies in some of the Applicant's averments and found the Respondent's account on several points to be more credible.
- Relevance of pregnancy: the Court accepted that the pregnancy and associated medical precautions might have affected travel and patterns of residence during the relevant period, but held this did not alter the need for objective proof that the Applicant had adopted an abode in Ireland for settled purposes as part of her ordinary life.
- Specific documentary weight: the Court considered a letter written by the Applicant to the Respondent's then-youngest child (May 2023) as informative and concluded it reflected residential arrangements consistent with a life largely centred in England (it referred to the baby being "in [two alternative cities in England] with the cats and me").
Weighing all evidence and applying Chubb, the Court emphasised that the burden lay on the Applicant to prove ordinary residence in Ireland and that proof depends more upon objective matters than upon subjective assertions. The Court concluded that the Applicant had not established a settled and usual place of abode in Ireland nor adopted an abode there for settled purposes during the period January 2023 to March 2024.
Holding and Implications
Holding: The Court found that the Applicant was not ordinarily resident in Ireland throughout the period January 2023 to March 2024.
Implications:
- Direct effect on the parties: The Court's factual finding means that the Applicant did not satisfy the statutory requirement in section 196(3) of the 2010 Act for ordinary residence in the State during the relevant one-year period. This factual conclusion bears directly on the jurisdictional question raised in the Respondent's motion (which sought a declaration that the Court cannot exercise jurisdiction under section 196(3) and striking out of proceedings on that basis).
- Scope and precedent: The judgment applies established authorities (Chubb, Shah, A v B and others) in interpreting "ordinary residence" and "throughout". The Court did not purport to establish new legal principles beyond applying those authorities to the facts of this case. The opinion contains a factual determination applying existing tests; it does not announce a novel legal rule.
The Court indicated that the matter would be listed on a date convenient to counsel to address any consequential issues arising from the judgment.
Anonymisation note: All individuals and locations are referred to by role-based or neutral placeholders (e.g., "Applicant", "Respondent", "Judge Jackson", "England", "Ireland") in accordance with the required anonymisation protocol. This summary is prepared exclusively from the provided opinion and does not introduce facts or inferences beyond that text.