Saturday 21 October 2017

Supreme Court calls for legislation to provide uniformity on foreign divorces

(Getty)
(Getty)

Tim Healy

The Supreme Court has called for legislation to provide for a uniform approach to recognition of foreign divorces after ruling that Irish law does not recognise their validity in certain circumstances.

The five-judge court's decision related to the recognition here of foreign divorces obtained before 1986 when a law was enacted abolishing the dependent domicile of a married woman.

By four to one, they ruled Irish law does not recognise the validity of a foreign divorce lawfully granted before October 1986 in a country where neither party to the relevant marriage was domiciled at the date the divorce proceedings were instituted but where one party was resident. 

Domicile, unlike short-term residence, refers to a permanent principal home.

All five judges agreed the legislative position in relation to the "difficult issue" of recognition of foreign divorces should be reconsidered so there is, as far as possible, a uniform approach.

The court's decision was made in the case of 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, she obtained a divorce there in the early 1980s  and the Supreme Court said the English court appeared to have made no financial provision for the woman in that order.

She returned to Ireland some years ago and initiated divorce proceedings here in 2005 in which it was argued her English divorce was not entitled to recognition here.

She also sought a declaration that her marriage subsisted at the date the Irish proceedings were initiated.

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

The case was referred by the High Court to the Supreme Court for determination of legal points arising from the fact of the existence of conflicting previous court decisions on the recognition of foreign divorces granted prior to 1986.

The essential point for the court to decide was whether Irish law recognised the validity of a foreign divorce lawfully granted before October 2, 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 on that date.

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

In a judgment which was supported by three of the Supreme Court's five judges, Ms Justice Elizabeth Dunne said it was undoubtedly the case that the law brought in after the divorce referendum was passed, 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 was open to it to do so at the time of, or subsequent to, the passing of that Act .

No such change had occurred, she said.  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 unfortunately the case that the law on foreign divorces has not developed in such a way which provides for different criteria for their recognition "depending on the happenstance of where and when the divorce was granted".  

For example, 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 an EU regulation brought in in 2005, she said.

For that reason, it seemed to her time to reconsider the legislative position on this difficult issue as people are "surely entitled to have certainty as to their marital status".

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