Foreign Divorce Issues
DOMICILE AND RECOGNITION OF FOREIGN DIVORCES ACT 1986
REVISED
Updated to 1 August 2022
AN ACT TO AMEND THE LAW RELATING TO DOMICILE AND THE RECOGNITION OF FOREIGN DIVORCES. [2nd July, 1986]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Abolition of wife’s dependent domicile.
1.—(1) From the commencement of this Act the domicile of a married woman shall be an independent domicile and shall be determined by reference to the same factors as in the case of any other person capable of having an independent domicile and, accordingly, the rule of law whereby upon marriage a woman acquires the domicile of her husband and is during the subsistence of the marriage incapable of having any other domicile is hereby abolished.
(2) This section applies to the parties to every marriage, irrespective of where and under what law the marriage takes place and irrespective of the domicile of the parties at the time of the marriage.
Domicile before commencement of Act.
2.—The domicile that a person had at any time before the commencement of this Act shall be determined as if this Act had not been passed.
Domicile after commencement of Act.
3.—The domicile that a person has at any time after the commencement of this Act shall be determined as if this Act had always been in force.
Dependent domicile of minor.
4.—(1) The domicile of a minor at any time when his father and mother are living apart shall be that of his mother if—
(a) the minor then has his home with her and has no home with his father, or
(b) the minor has at any time had her domicile by virtue of paragraph (a) of this subsection and has not since had a home with his father.
(2) The domicile of a minor whose mother is dead shall be that which she last had before she died if at her death the minor had her domicile by virtue of subsection (1) of this section and has not since had a home with his father.
(3) This section shall not affect any existing rule of law as to the cases in which a minor’s domicile is regarded as being, by dependence, that of his mother.
(4) In the application of this section to a minor who has been adopted, references to the father or mother of such minor shall be construed as references to the adoptive father or adoptive mother of such minor.
Recognition of foreign divorces.
5.—(1) For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled.
(2) In relation to a country which has in matters of divorce two or more systems applying in different territorial units, this section shall, without prejudice to subsection (3) of this section, have effect as if each territorial unit were a separate country.
(3) A divorce granted in any of the following jurisdictions—
(a) England and Wales,
(b) Scotland,
(c) Northern Ireland,
(d) the Isle of Man,
(e) the Channel Islands,
shall be recognised if either spouse is domiciled in any of those jurisdictions.
(4) In a case where neither spouse is domiciled in the State, a divorce shall be recognised if, although not granted in the country where either spouse is domiciled, it is recognised in the country or countries where the spouses are domiciled.
(5) This section shall apply to a divorce granted after the commencement of this Act.
(6) Nothing in this section shall affect a ground on which a court may refuse to recognise a divorce, other than such a ground related to the question whether a spouse is domiciled in a particular country, or whether the divorce is recognised in a country where a spouse is domiciled.
(7) In this section—
“divorce” means divorce a vinculo matrimonii;
“domiciled” means domiciled at the date of the institution of the proceedings for divorce.
Annotations
Modifications (not altering text):
C1
Prospective affecting provision: application of section restricted by Family Law Act 2019 (37/2019), s. 5 (2), not commenced as of date of revision.
Definitions and Application (Part 3)
5.— …
(2) Section 5 of the Domicile and Recognition of Foreign Divorces Act 1986 shall not apply to a divorce to which section 6 or 7 applies.
C2
Application of section restricted (1.08.2022) by European Union (Decisions in Matrimonial Matters and in Matters of Parental Responsibility and International Child Abduction) Regulations 2022 (S.I. No. 400 of 2022), reg. 7(a), in effect as per reg. 1(2).
Non-applicability of certain statutory provisions.
7. The following provisions shall not have effect in relation to proceedings to which the Council Regulation (other than Article 6) applies:
(a) section 5 of the Domicile and Recognition of Foreign Divorces Act 1986;
…
C3
Application of section restricted (31.12.2020, 11 p.m.) by Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020 (23/2020), s. 124(2), S.I. No. 693 of 2020.
Definitions and application (Part 19)
124. …
(2) Section 5 of the Domicile and Recognition of Foreign Divorces Act 1986 shall not apply to a divorce to which section 125 or 126 applies.
Editorial Notes:
E1
Previous affecting provision: application of section restricted (1.03.2005) by European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005 (S.I. No. 112 of 2005), reg. 7(a), in effect as per reg. 1(2); revoked (1.08.2022) by European Union (Decisions in Matrimonial Matters and in Matters of Parental Responsibility and International Child Abduction) Regulations 2022 (S.I. No. 400 of 2005), reg. 12, in effect as per reg. 1(2), suject to transitional provisions in paras. (a)-(c).
E2
Previous affecting provision: application of section restricted (23.10.2001) by European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2001 (S.I. No. 472 of 2001), reg. 3; revoked (1.03.2005) by European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005 (S.I. No. 112 of 2005), reg. 11, in effect as per reg. 1(2).
Short title and commencement.
6.—(1) This Act may be cited as the Domicile and Recognition of Foreign Divorces Act, 1986.
(2) This Act shall come into operation on the day that is three months after the date of the passing of this Act.
FAMILY LAW ACT ACT 2019
REVISED
Updated to 17 December 2020
An Act to amend the Judicial Separation and Family Law Reform Act 1989; to amend the Family Law (Divorce) Act 1996; to amend the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010; to make provision, in the event of the withdrawal of the United Kingdom from membership of the European Union occurring without an agreement between the United Kingdom and the European Union under Article 50 of the Treaty on European Union setting out the arrangements for such withdrawal, for the recognition of certain divorces, legal separations and marriage annulments granted in the United Kingdom or Gibraltar; and to provide for related matters.
[25th October, 2019]
Be it enacted by the Oireachtas as follows:
PART 1
Preliminary and General
Short title and commencement
1. (1) This Act may be cited as the Family Law Act 2019.
(2) This Act shall come into operation on such day or days as the Minister for Justice and Equality may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
Annotations:
Editorial Notes:
E1
Power pursuant to subs. (2) exercised (1.12.2019) by Family Law Act 2019 (Commencement) Order 2019 (S.I. No. 585 of 2019).
2. The 1st day of December 2019 is appointed as the day on which Parts 1 and 2 of the Family Law Act 2019 (No. 37 of 2019) shall come into operation.
PART 2
Amendments to Acts Relating to Family Law
Amendment of section 2 of Judicial Separation and Family Law Reform Act 1989
2. (1) Section 2 of the Act of 1989 is amended—
(a) in subsection (1) —
(i) in paragraph (d), by the deletion of “and the respondent consents to a decree being granted”, and
(ii) by the deletion of paragraph (e),
(b) in subsection (2) —
(i) in paragraph (b), by the deletion of “or (e)”, and
(ii) by the substitution of “living apart from one another” for “not living with each other”,
and
(c) in subsection (3), by the substitution of the following paragraph for paragraph (a):
“(a) For the purposes of this section—
(i) spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship, and
(ii) a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature.”.
(2) The amendments effected by subsection (1) shall apply to proceedings for the grant of a decree of judicial separation under the Act of 1989—
(a) that are instituted on or after the date this section comes into operation, or
(b) that have been instituted, and have not been concluded, prior to such date.
(3) In this section, “Act of 1989” means the Judicial Separation and Family Law Reform Act 1989.
Amendment of section 5 of Family Law (Divorce) Act 1996
3. (1) Section 5 of the Act of 1996 is amended—
(a) in subsection (1)(a), by the substitution of “at least two years during the previous three years” for “at least four years during the previous five years”, and
(b) by the insertion of the following subsection after subsection (1):
“(1A) For the purposes of this section—
(a) spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship, and
(b) a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature.”.
(2) The amendments effected by subsection (1) shall apply to proceedings for the grant of a decree of divorce under the Act of 1996—
(a) that are instituted on or after the date this section comes into operation, or
(b) that have been instituted, and have not been concluded, prior to such date.
(3) In this section, “Act of 1996” means the Family Law (Divorce) Act 1996.
Amendment of Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010
4. (1) Section 110 of the Act of 2010 is amended by the insertion of the following subsection after subsection (1):
“(1A) For the purposes of this section—
(a) civil partners who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the civil partners do not live together as a couple in an intimate and committed relationship, and
(b) a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature.”.
(2) Section 172(6) of the Act of 2010 is amended—
(a) by the substitution of “where the relationship concerned ends before the coming into operation of section 4(2) of the Family Law Act 2019, an adult who” for “an adult who”, and
(b) in paragraph (b), by the substitution of “lived apart (which term shall, in this section, be construed in accordance with section 5(1A) of the Family Law (Divorce) Act 1996)” for “lived apart”.
(3) The amendment effected by subsection (1) shall apply to proceedings for the grant of a decree of dissolution under the Act of 2010—
(a) that are instituted on or after the date this section comes into operation, or
(b) that have been instituted, and have not been concluded, prior to such date.
(4) In this section, “Act of 2010” means the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
PART 3
Recognition of Certain Divorces, Legal Separations and Marriage Annulments
Definitions and application (Part 3)
5. F1[…]
Annotations:
Amendments:
F1
Repealed (17.12.2020) by Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020 (23/2020), s. 4(c), S.I. No. 634 of 2020.
Recognition of certain divorces, legal separations and marriage annulments granted in United Kingdom or Gibraltar before coming into operation of section
6. F2[…]
Annotations:
Amendments:
F2
Repealed (17.12.2020) by Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020 (23/2020), s. 4(c), S.I. No. 634 of 2020.
Recognition of certain divorces, legal separations and marriage annulments granted in United Kingdom or Gibraltar after coming into operation of section
7. F3[…]
Annotations:
Amendments:
F3
Repealed (17.12.2020) by Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020 (23/2020), s. 4(c), S.I. No. 634 of 2020.