An application can be made to an Irish Court to have the Court order or declare that a divorce in another country is recognised

Whether the divorce is recognised or not will depend on when the divorce was granted, where it was granted, whether either of the spouses lived in the country granting the divorce, for how long and whether or not it was their normal residence and whether they intended to stay there. 

The area of recognising foreign divorces in Ireland is a slightly complicated one will vary depending on whether the divorce was granted before or after 1986. In addition divorces granted in the UK are treated differently and they must be recognised in certain circumstances.

Another complication is that divorces granted in the EU member states since 1 March 2005 are governed by a law called Brussels II bis. It is possible that divorces in EU member states from March 2001-2005 may also be recognised under this law. 

.There are then 3 different dates to be aware of:

 

1. pre 1986

2. post 1986

3. post March 2001 or 2005 

In addition the recent Supreme Court case has clarified this area of law, see on our blog. 

 

for more information contact keith@kwsols.ie, 01 455 4723 

see our blog on the latest Supreme Court case on recognition of foreign divorces in Ireland and the 1986 Act - summary below and also details of 1986 Act below that. 

SUMMARY OF SUPREME COURT CASE 3 February 2015 

Recognition of foreign divorce - Supreme Court does not recognise foreign divorce granted before 1986 where neither spouse domiciled in the foreign country on date of divorce although one was resident there 

This is a very important case decided by the Supreme Court on the 3rd February 2015. I have set out the full judgement below but I have made a quick summary first. 

The parties were married in Ennis on the 24 September 1966. They have six children, all grown up. The wife left in July 1978 alleging violence against the husband. She returned and reconciled in October 1979 but alleged violence recommenced and she left the family home with the youngest child and went to live in London. The domestic violence is denied by the husband. The wife applied to Willesden County Court in England for a divorce on the 4 February 1981, a decree nisi was granted on the 22nd January 1982 and a final and absolute decree of divorce was granted on the 14 July 1982. There was no financial relief or provision made as part of the decree of divorce. 

The wife returned to Ireland in 2003 and in 2005 issued proceedings claiming, among other things, a declaration from the Court that the decree of divorce in England was not entitled to be recognised and that she was still married to her husband.  

The Circuit Court Judge decided that as she was resident in England for one year at the time of the institution of the proceedings seeking the English divorce that the English divorce was a valid divorce in Ireland. The Judge followed a case of McG v W. The wife appealed this decision to the High Court and joined in the state and the Attorney General [usually done when the case is a matter of public importance].  

The High Court Judge decided that as a matter of fact the wife had been living for at least one year in London before she started the divorce proceedings there and that she was not domiciled in England at either the time of the institution of the divorce proceedings or at the time of the grant of the decree absolute. 

The High Court Judge accepted that the English divorce would not be recognised in Ireland unless the State recognised the validity of a foreign divorce lawfully granted in a country where neither party to the marriage in question was domiciled at the date of the institution of divorce proceedings but where one party was resident at that date. As the High Court cases to date are conflicting in relation to the applicable law, the Judge referred the decision to the Supreme Court as a consultative case stated seeking the opinion of the Court on three questions. 

The Supreme Court decided that residence for one year prior to the institution of proceedings is not enough. One of the parties must not just be resident in the foreign country at the time of institution of proceedings, they must be domiciled there.

This means that the wife's divorce in England was not recognised in Ireland as she was not domiciled in London at the time she applied for it. This case applies to foreign divorces granted prior to 1986 as a law was passed in 1986 called 'Domicile and Recognition of Foreign Divorces Act 1986' which states among other things that a divorce granted in England will be recognised if either spouse is domiciled there.   

Keith Walsh note: domicile is defined by Murdoch in Dictionary of Irish Law as 

'The place in which a person has a fixed and permanent home, and to which, whenever he is absent, he has the intention of returning. It depends on the physical fact of residence as well as the intention of remaining. '

The Supreme Court decided that the case of McG v W was wrongly decided. This was the view of the majority of the Supreme Court but Judge O'Donnell had a dissenting judgement which I have included below the majority judgment. The dissenting judgement does not have the force of law but may be referred to in future cases. 

- See more at: http://www.kwsols.ie/blog/recognition-of-foreign-divorce-supreme-court-does-not-recognise-foreign-divorce-granted-before-1986-where-neither-spouse-domiciled-in-the-foreign-country-on-date-of-divorce-although-one-was-resident-there-.253.html#sthash.B9Nmb1WZ.dpuf

Domicile and Recognition of Foreign Divorces Act, 1986

Number 24 of 1986

DOMICILE AND RECOGNITION OF FOREIGN DIVORCES ACT, 1986

ARRANGEMENT OF SECTIONS

Section

1.Abolition of wife's dependent domicile.

2.Domicile before commencement of Act.

3.Domicile after commencement of Act.

4.Dependent domicile of minor.

5.Recognition of foreign divorces.

6.Short title and commencement.

Number 24 of 1986

DOMICILE AND RECOGNITION OF FOREIGN DIVORCES ACT, 1986

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.

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.