Foreign Divorce Issues

Background

The issue of recognition of divorce is of potentially great significance.  Formerly,  prior to the below amendments,  the basis upon which a divorce was recognised in Ireland was extremely limited.  Following the divorce referenda and European legislation, the position has been radically altered.

The Constitution originally contained a provision prohibiting the enactment of a law allowing for the dissolution of marriage. To further support the former prohibition on divorce it was provided that no party whose marriage had been dissolved under the laws of another jurisdiction could remarry unless the divorce was also recognised under Irish law.

Following some early cases on the interpretation of the Constitution, the courts came to the view that Irish law would recognise a foreign divorce only if parties were domiciled in the jurisdiction which issued the divorce decree at that time.

English or United States courts granted divorces on the basis of residence, which Irish law refused to recognise, as the parties retained Irish domicile. This had the effect that any subsequent marriage by one of the parties would be invalid and indeed bigamous, notwithstanding the validity of the foreign divorce in the foreign jurisdiction.

The courts were not prepared to hold that the parties were estopped from challenging the validity of the marriage, notwithstanding that they might have acted for many years as if it was dissolved.

Cases arose under the older law, by which the Irish law refused to recognise a divorce and thereby deemed an earlier spouse who was currently divorced under the laws of other jurisdiction to continue to be the spouse for the purpose of Irish law.  The implication was that that spouse was entitled to the legal right to shares and all the statutory rights and privileges of spouses under Irish law.

Domicile

See the separate sections on the concept of domicile at common law.  Broadly speaking, domicile is acquired at birth and is difficult to lose.  There must be an intention to move to another place permanently in order to acquire its domicile.  It implies a long-term connection.

The Family Law Act 1995 provides for declarations of recognition of marital status.  Either party or third parties may apply, provided they have sufficient interest in the matter.  The declaration may declare the recognition by Irish law of a foreign order of divorce, annulment or judicial separation.

The common law rules which applied prior to 1986 require that both spouses be domiciled in a foreign jurisdiction.  A further anomaly was that prior to 1986, the domicile of the wife was that of her husband.  This common law rule, which had a very questionable validity under equality provisions of the Constitution, led to even more complicated anomalies in the recognition of foreign divorce.

The Domicile and Recognition of Foreign Divorces Act 1986 provided that husbands and wives would have separate domicile.  Accordingly, the validity of divorces was recognised on the basis of the domicile of either.

Pre-1986 Divorces

A number of High Court cases, followed by a Supreme Court case in the late 1980s, held that the domicile of dependence common law rule was unconstitutional.  In accordance with constitutional principles, it has been unconstitutional at all times since the enactment of the 1937 Constitution.

The courts held that the Irish courts should recognise a foreign divorce if either of the parties is domiciled in the relevant jurisdiction.  The effect was that the principles in the 1986 Act were found to represent the pre-existing constitutional position.

The Supreme Court in H v H held (by a majority of 3:2) that McG v W was incorrectly decided, thereby confirming that recognition of non-EU divorces pre-1986 Act depended entirely on domicile. Mere residence in the granting country would not justify recognition in Ireland. It followed that the anachronistic divorce recognition criteria of the indissolubility era were to remain applicable.

The Supreme Court was unanimous of the view that the existing law on recognition of  foreign divorces was fundamentally flawed and in urgent need of reform, but the majority thought that any reform must be implemented by the Oireachtas.

Constitution & Divorce

The Constitution originally contained a provision prohibiting the enactment of a law allowing for the dissolution of marriage.  This was ultimately replaced in 1995 by an article allowing divorce in certain (limited) circumstances.

• at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
• there is no reasonable prospect of a reconciliation between the spouses,
• such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and
• any further conditions prescribed by law are complied with.

It was further amended in 2019 so that it is now sufficient that at the date of the institution of the proceedings, the spouses have lived separate and apart from one another for a period of, or periods amounting to, at least two years in the previous three years.

Constitution & Recognition Foreign Divorces

To further support the former prohibition on divorce, it was provided that no party whose marriage had been dissolved under the laws of another jurisdiction could remarry unless the divorce was also recognised under Irish law. The 1995 amendment provided

No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.

This was substituted by the 2019 amendment to the Constitution,

Provision may be made by law for the recognition under the law of the State of a dissolution of marriage granted under the civil law of another state.

Habitual Residence

The common law of basis of recognition of foreign divorces developed in England and Wales in the 1960s and 1970s.  The English courts effectively modified the common law principle, which recognised divorce on the basis of domicile and substituted a test recognising the divorce of the residence, where there was a real and substantial connection with the state exercising the jurisdiction.

Following the enactment of divorce in 1995/6,  the Irish courts developed the common law position and came to recognise a foreign grant of divorce on the basis of habitual residence.  This effectively extended the common law rule of recognition.

However, the Supreme Court held by a majority in MH v GH [2015] 4 I.R. 560, with a dissent by O’Donnell J. (Denham C.J. concurring) found that recognition required that one party be domiciled in the state concerned.

Under the Constitution as amended in 2019, the Oireachtas may legislate for the recognition of foreign divorces granted under the civil law of another state. However, as of 2022, it has not yet done so.

Brexit

The Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020  provides for the continued recognition in Ireland of divorces, legal separations and marriage annulments granted in the UK, in the same basis as other EU state.. Divorce, legal separation or marriage annulment shall,  be recognised if, at the date of the institution of the proceedings relating to the divorce, legal separation or marriage annulment concerned, at least one of the following requirements is satisfied:

• the spouses were habitually resident in a relevant jurisdiction;
• the spouses were last habitually resident in a relevant jurisdiction, insofar as one of them still resided there;
• the respondent was habitually resident in a relevant jurisdiction;
• the applicant—(i) was habitually resident in a relevant jurisdiction, and (ii) had resided there for at least a year immediately prior to that date;
• either of the spouses was domiciled in a relevant jurisdiction.

A divorce, legal separation or marriage annulment to which this section applies shall not be recognised—

• if such recognition is manifestly contrary to public policy,
• where the judgment in the proceedings relating to the divorce, legal separation or marriage annulment concerned (“the relevant judgment”) was given in default of appearance if the respondent was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defence unless it is determined that the respondent has accepted the judgment unequivocally,
• if the relevant judgment is irreconcilable with a judgment given in proceedings between the same parties in the State or
• if the relevant judgment is irreconcilable with an earlier judgment given in a state other than the State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the State.

EU Regulations

The position among EU states is now governed by EU regulations.  It applies to foreign divorces granted after 1st March 2001 in the original 15 EU states.  After May 2004, it was extended to the 10 new EU accession states and states and the three states that later acceded.

The Regulation is part of the general  Brussels II Regulation on the recognition of judgments and order. It applies to legal proceedings and settlements concluded after 1st March 2005.

The Regulations provide for the procedure for application to recognise and enforce EU orders of divorce, legal separation and annulment.  The court may also rule on the recognition of the same if it arises as an incidental issue in other proceedings.

On 1 August 2022, Regulation 2019/1111 came into effect. It applies to legal proceedings that start after 1 August 2022 and agreements made after that date.

Brussels II 2003

An application for recognition was made to the Master of The High Court.  It was grounded on an affidavit exhibiting the judgment or a certified copy.  Where judgment was in default, proof of service is required.

If the Master grants an order, it will provide for the period in which an appeal may be made.  Notice of the order granting to leave to enforce the judgment must be served together with the order on the person affected by it.  The same broad procedures that apply to recognise the recognition of civil judgments apply.

The grounds of recognition of foreign divorces, legal separation, and annulments are relatively liberal.  The Regulation provides that it shall not be recognised if:

• the recognition is manifestly contrary to the public policy of the state in which recognition is sought.
• Where it is in default of appearance the respondent was not served with the document which instituted the proceedings in sufficient time to enable him defend the matter unless it is determined that the respondent has accepted the judgment unequivocally.
• it is irreconcilable with  judgment given in proceedings between the same parties in which the recognition is sought or
• it is irreconcilable with an earlier  judgment given in another state between the same parties, provided the earlier judgment fulfils the requirement for recognition.

Brussels IIa 2005

Regulation (EC) No 2201/2003 known as ‘The Brussels IIa Regulation’ applies to civil law cases involving more than one country that relate to:

• divorce
• legal separation
• the annulment of a marriage
• any aspect of parental responsibility (such as custody and access rights).

The regulation does not apply to cases concerning:

• grounds for divorce or the law applicable in divorce cases
• divorce-related issues such as maintenance
• establishing and challenging paternity
• judgments on adoption and the associated preparatory measures
• annulling or revoking an adoption
• a child’s first and last names
• the independence of children from their parents or guardians
• trusts and inheritance
• measures taken in response to criminal acts committed by children.

Automatic Recognition

Under the regulation, any Member State must automatically recognise judgments given in another Member State on matrimonial and parental responsibility matters. Recognition can be refused if, for example:

• recognition is clearly contrary to public policy
• the defendant did not receive the document initiating proceedings in time to arrange legal defence (in cases where the judgment was given in the defendant’s absence)
• recognition is incompatible with another judgment given between the same parties.

For judgments concerning parental responsibility, recognition can also be refused if:

• the child was not given an opportunity to be heard
• on the request of a person claiming that the judgment infringes his or her parental responsibility, the judgment was issued without this person having been given an opportunity to be heard.

2019 Restatement

 

Select Law Divorce

Ireland and UK have not ratified the Rome III Regulation. It operates by way of enhanced cooperation between other States. It creates uniform rules on divorce and separation and regulates the manner in which parties may agree to select the applicable law. It provides a hierarchy of rules in the absence of election. It relates only to the issue of applicable law.

Spouses may elect jointly, the law to apply to divorce or separation. It may designate the law applicable provided that it is one of

• the law of the place where the spouses are habitually resident at the time of the agreement;
• the law of the State where the spouses were last habitually resident, insofar as one of them still resides there at the time of agreement;
• the law of the State of the nationality of either spouse at the time of the agreement or
• the law of the forum.

Default

In the absence of a choice divorce and legal separation shall be subject to the law of the State:

• where the spouses are habitually resident at the time the court is seized; or, failing that
• where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that
• of which both spouses are nationals at the time the court is seized; or, failing that
• where the court is seised

Common law courts have not traditionally been willing to determine disputes in accordance with civil law principles which is a significant reason of why it has not been adopted.

The law designated is to apply whether or not it is the law of the participating State, where the EU States are outside Rome III and are governed by Brussels II.