Divorce & Nullity

The Constitution originally contained 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,

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 substitutes 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.

Formerly,  prior to the above amendments,  the basis upon which a divorce will be recognised in Ireland was extremely limited.  Following the divorce referendum and European legislation the position has been radically altered.

The issue of recognition of divorce is of immense significant.  Situations commonly 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 implications was that that spouse was entitled to legal right to shares and all the statutory rights and privileges of spouses under Irish law.

Irish law recognises marriage as valid where it is valid under the laws of the place where it is celebrated.  This is provided that the marriage has the basic elements of a marriage defined under Irish law.

Formerly, it must be a union of one man and one woman. Biological gender only was recognised for this purpose.  Same sex marriage is now allowed. The Constitution was amended in 2015 to provide that marriage may be contracted in accordance with law by two persons without distinction as to their sex.

The parties must have undergone a marriage ceremony which is recognised as legally valid in the jurisdiction concerned. Each spouse must have the capacity to marry at the relevant time.

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 refuse 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.

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 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 the 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 was 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 were recognised on the basis of the domicile of either.

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

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

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 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 divorce on the basis of habitual residence.  This effectively extended of the common law rule of recognition.

The position amongst EU state is now governed by EU Regulation.  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.

An application for recognition is made to the Master of The High Court.  It is grounded on an affidavit exhibiting the judgment or  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 which 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.

Traditionally common law recognised foreign divorces on the basis of domicile of one of the parties.  The rules were particularly restrictive during the era of the divorce ban in Ireland.  The courts are now more open  to loosening the grounds  of recognition.

Under the older rules that the Irish courts refuse to recognise divorces granted in England on the basis of residence where the parties continued  to be domiciled in Ireland.  In these cases the courts did not recognises a subsequent marriage by Irish domiciliary as valid..

The English courts took  a more liberal view in view of the much wider availability of divorce.  Laterally, the Irish courts have moved in that direction, given that divorce is now available in Ireland and available on the basis of residence.

Courts do not recognise the impairment of  capacity to marry imposed by foreign law which are contrary to public policy.  For example, laws that are penal, discriminatory or base recognition on race, caste or religion are unlikely to be recognised.

Similarly if recognition would be contrary to public policy, it is likely to not be recognised in Ireland.

The issue of consent to marry is governed by the law of the parties’ domicile according to most opinion.  A minority of cases have applied the law of the forum where the matter is being considered.

Impotence is a ground of nullity under Irish law.  Prior, to  the introduction of divorce, the incapacity to marry on this ground became a common grant of annulment.  Most support is for the law of domicile.  Some cases support the law of the forum.

Questions of the proper jurisdiction arise in relation to applications to nullify marriage.

There is significant Irish authority for the proposition that domicile is the appropriate basis for jurisdiction in the case of a void marriage.  There is Northern Ireland authority for the proposition that residence in the sense of bona fide residence rather than strategic  residence for the purpose of the litigation may suffice.  Traditionally the ecclesiastical counts. based  jurisdiction on residence.

In the case of voidable marriages, it appears that the jurisdiction of common domicile would apply .  Some cases give support for the proposition that residence may a basis. There is  support for the proposition that  Irish law may deal with  certain elements of nullity where the marriage took place in Ireland

Questions arise as to recognition of foreign nullity.  There is authority for the proposition that the jurisdiction of common domicile would be recognised even if the marriage took place in a third country.

Anomalies can arise where parties have changed their domicile and lived in accordance with the laws of another jurisdiction. Where only one party is domiciled where the nullity was declared, the position is less certain.  .

Some cases have recognised  nullities on  the basis of the parties’ common residence at the time.  The position in the case of residence of one party is less clear.  In some cases the place of celebration has been recognised.

There are grounds for withholding the recognition of a foreign nullity.  They include the following

• where the recognition would be contrary to substantial justice or public policy; this ground of refusal will  be exercised rarely and in exceptional circumstances;
• whether there is fraud in obtaining the foreign decree;
• where the foreign decree was obtained offending the rules of natural justice (participation opportunity  by both parties);
• where the domestic courts have already adjudicated on the matter

There is specific Irish legislation allowing for issues of recognition of foreign nullities to be adjudicated in Ireland.