High Court expands legislation on foreign divorces before 1986

A High Court decision has expanded the law in relation to the recognition of foreign divorces. Mrs Justice McGuinness ruled that a divorce granted by the English courts to an Irish couple before 1986 was entitled to be recognised under Irish law and that the subsequent remarriages, in England, of both par- ties to others were valid.

In the divorce petition, the jurisdiction of the English court was based on the English domicile of the first wife or alternatively her residence for more than one year in England.

The proceedings before Mrs Justice McGuinness came in the form of a petition by the man for a decree of nullity. He had claimed his second marriage was null and void because of his prior marriage. The judge ruled the particular facts of the case should not be reported.

In her reserved decision, the judge said it was clear that, from the point of view of the laws of England, the divorce granted to the Irish man and his then wife before 1986 was valid and that both remarriages in England were equally valid. The basic question was whether the English divorce was entitled to recognition in this State, she said.

The Domicile and Recognition of Foreign Divorces Act, 1986, stated that a divorce shall be recognised if granted in the country where either spouse was domiciled. However, in the present case, the divorce was granted before 1986 so the 1986 law did not apply and the issue of recognition had to be dealt with under the common law.

The Supreme Court had held in the case of W. v W. that the common-law rule to be applied before October 2nd, 1986, was that a divorce would be recognised if granted by the court of a country in which either of the parties to the marriage was domiciled at the time of the proceedings for divorce.

Mrs Justice McGuinness said the domicile-based recognition rule was expanded in English law over a time to include such criteria as habitual or ordinary residence for a specified period and this generally reflected the widening of the jurisdictional bases on which the English courts granted decrees of divorce.

However, because of the then constitutional ban on divorce in this State, the conditions which could give rise to similar developments in Irish law did not exist, she said.

It had been argued in the case before her that the law relating to divorce in Ireland had under- gone changes of "seismic proportions" since the W. v W. case and that she should consider further development of the common law recognition rule.

Mrs Justice McGuinness said the law in regard to divorce had dramatically altered since 1993, by the passing of the 15th Amendment to the Constitution and the enactment of the Family Law (Divorce) Act 1996.

The Republic now had a divorce jurisdiction under the new Article 41.3.2 of the Constitution and under the 1996 Act.

Under that Act, the courts could grant a decree of divorce where either spouse was resident in the State on the date proceedings were instituted or where either spouse was ordinarily resident in the State for a period of one year ending on that date. She said this demonstrated "a clear policy" by the legislature that jurisdiction in matrimonial matters was not limited to domicile but also extended to a basis of ordinary residence for a period of one year before the issue of proceedings.

"It would seem to me both logical and reasonable that the Irish common law recognition rule should similarly be ex- tended to cover cases where under the statute law the Irish courts claim entitlement, not only to dissolve marriages but also to annul them and to make far-reaching declarations as to marital status."

The court must also consider the difficulties which might arise because the 1986 Act only recognised divorces granted in the country where either spouse was domiciled, the judge said. It appeared the primary purpose of the 1986 Act was to abolish the dependent domicile of married women and it followed that fresh consideration had to be given to the recognition rule based on the common domicile of spouses.

In considering what the policy of the court should be in the present case, the judge said she might not leave out of account the 1996 Divorce Act and that it was open to her to modify the judge-made rule to do justice to the parties in the case.

In the present case, the man and his first wife were granted a divorce by the English courts which was valid in English law. The first wife had been ordinarily resident within the jurisdiction of the English courts for more than a year.

On the facts of the case, the parties could now obtain a divorce in this State, the judge said. The parties involved had arranged their lives on the basis of the validity of the English divorce and their subsequent remarriages but they now found them selves unsure of their marital status.

In the light of her findings, she considered the divorce decree granted in England to the couple was entitled to recognition under Irish law and that the subsequent marriages by both parties to others were valid.