Supreme Court calls for law on recognition of foreign divorces

The Supreme Court has called for legislation to enable a uniform approach to recognition of foreign divorces. It follows a ruling that Irish law does not recognise the validity of divorces obtained before 1986 in certain circumstances.

An important judgment was delivered by the court today relating to the recognition here of foreign divorces obtained before 1986, the year a law was enacted abolishing the dependent domicile of a married woman.

The five-judge court ruled, by four to one, that Irish law does not recognise the validity of a foreign divorce lawfully granted before October 1986 in a country where neither person in the marriage was domiciled when the divorce proceedings were instituted but where one party was resident.

All five judges agreed the legislative position in relation to the “difficult issue” of recognition of foreign divorces should be reconsidered to ensure, as far as possible, a uniform approach.

The judgment was delivered in proceedings by an Irish woman who married here in the 1960s and had several children with her husband before she left him due to his alleged violence, which he denied.

While resident in England, the woman got a divorce there in the early 1980s. The Supreme Court noted the English court appeared to have made no financial provision for the woman in that order.

She returned to Ireland some years ago and began divorce proceedings here in 2005 in which it was argued her English divorce was not entitled to recognition here. She also sought a declaration her marriage subsisted at the date the Irish proceedings were initiated.

Her husband lodged a defence to those claims and a counterclaim.

The Attorney General, represented by Cormac Corrigan SC, was a party to the case which was referred by the High Court to the Supreme Court for determination of legal points arising from the fact of the existence of conflicting High Court decisions concerning recognition of foreign divorce granted before 1986.

The essential point for the court to decide was whether Irish law recognised the validity of a foreign divorce lawfully granted before October 2nd, 1986, in a country where neither party was domiciled at the date of institution of the foreign proceedings but where one party was resident there.

The date of October 2nd reflected the fact that this was when the Domicile and Recognition of Foreign Divorces Act 1986 abolished the dependent domicile of a married woman and provided for recognition of foreign divorces if granted in a country where either spouse was domiciled.

The act provided a divorce obtained in England, Wales, Scotland, Northern Ireland, the Isle of Man and the Channel Islands shall be recognised here if either spouse was domiciled in any of those jurisdictions.

In her judgment, Ms Justice Elizabeth Dunne said, before the 1986 act, it was a principle of the system of private international law that decrees of dissolution of marriage granted in another country would be recognised here. Domicile was recognised and accepted as the foundation of the jurisdiction to dissolve marriage, she said.

It may have been thought the recognition of foreign divorces was resolved by that act but the ending of the constitutional ban on divorce in 1995 provided the Irish courts can grant a divorce on the basis of domicile of either of the spouses, or the residence of either spouse in this State, for a period of one year after the initiation of proceedings.

There were also developments in relation to European law (known as Brussels II bis) in 2005 which provided jurisdiction in relation to foreign divorces was based on habitual residence.

Ms Justice Dunne said the Family Law (Divorce) Act 1996 enables divorce to be granted by reason of residence in the state. If the legislature had wished to modify the position in relation to the recognition of foreign divorces, it could have done so at the time of the passing of that act or subsequently, she said.

No such change had occurred and in circumstances where the 1986 act governs recognition of foreign divorces based on domicile, she failed to see how it could be said the present policy of the court is that the common law rule applicable to foreign divorces before October 1986 may be modified.

It was unfortunate that the law on foreign divorces has not developed to provide for different criteria for their recognition “depending on the happenstance of where and when the divorce was granted”.

A divorce granted in New York is based on domicile of one party, while a divorce granted in an EU state after March 2005 is recognised on the basis of habitual residence in accordance with the Brussels II bis regulation, she said.

In those circumstances, it seems time to reconsider the legislative position on this difficult issue as people are “surely entitled to have certainty as to their marital status”.

In a separate concurring judgment, Mr Justice Frank Clarke said it would not be justified to retrospectively reinterpret the common law, after a significant period in time, to effect the recognition of a foreign divorce in a way which is very different to what would have been the case when the divorce decree was granted, he said.

In his dissenting judgment, Mr Justice Donal O’Donnell agreed the matter should be addressed through legislation but believed the court should do what is within its power to “limit the unnecessary distress and cost” to people domiciled in Ireland.