The Government has decided not to adopt the latest European Union proposals on divorce. If it had opted in, Irish courts could have ended up applying different types of divorce law to different couples, depending on their country of origin or even the country in which they were married.
These were among the possible solutions posed by the European Commission in a Green Paper where it sought to bring some order to the chaos of the different divorce regimes that exist across the EU.
Already Ireland had agreed to two regulations - Brussels 11 and Brussels 11 bis - aimed at allowing for different types of divorces in cases where couples come from different member states or move from one member state to another. This means, for example, that an Irishman who goes to work in Denmark, leaving his wife and family in Ireland, can obtain a divorce there after six months without his wife enjoying Irish constitutional protections, which include the need for a four-year separation and for "proper provision" to be made for her and for any dependant children.
It is true, as the Government has argued, that there has long been recognition of foreign divorces in Ireland. But such recognition was very limited and was based on the concept of domicile, which was a much stricter concept than that of "habitual residence", which applies under Brussels ll. Nationality, as well as domicile, can also be used to obtain divorces abroad which are recognised in Ireland under Brussels II.
The confusion about the recognition of foreign divorces by our courts, and the possibility that one party could evade the conditions laid down by the Irish Constitution by establishing residence abroad, has given rise to considerable criticism of the decision to opt into Brussels II without a debate in the Dáil on its precise contents. It is difficult to avoid the conclusion that the decision not to adopt the latest proposals, known as Rome III, is a damage-limitation exercise.
It is also unclear where this now leaves Ireland in the EU's divorce harmonisation project. Those close to the proposals knew that Brussels II was only the first step in a process. It was followed by a subsequent regulation, Brussels II bis, which Ireland also opted into. The Government has put the brakes on its participation but the process will continue across Europe anyway.
The initial decision to opt into Brussels II has created difficulties, which the High Court has already had to confront in at least two cases. They may affect only a small minority of couples in Ireland, but they do make our divorce regime more complex and confusing.
The whole episode highlights the consequences of hasty agreement with proposals from Brussels without careful analysis of the potential impact. We should be confident enough in our commitment to Europe to question proposals from the Commission and to opt out of those which do not suit us before we are confronted with the problems they create.