Divorce & Nullity Non-EU

Table of Contents

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.

Marriage Recognition

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.

Nullity

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

Impotence and inability to form a normal marital relationship are grounds for 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 the 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 be 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.

Recognition Foreign Nullties

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

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 the 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

Courts do not recognise the impairment of the capacity to marry imposed by foreign law, which is 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.