Introduction
Prior to the enactment of the Domicile and Recognition of Foreign Divorces Act 1986 (the 1986 Act) recognition of a foreign divorce was governed by common law rules. The domicile of a party may be broken into two categories; domicile of origin, refers to the birthplace of a party and domicile of choice, which may be acquired. In Re Joyce[1] it was held that domicile of origin continues until intentionally or voluntarily abandoned. A domicile of choice can be established by proving residency and satisfying an intention to reside in that jurisdiction permanently as was held in B(R) v. S(A) (orse AB).[2] This essay will discuss the development of legislation and case law on the recognition of foreign divorces since the foundation of the state to the recent Supreme Court decision in H v. H in 2015.[3] In the analysis the essay will question whether the concept of domicile is uniquely central to the 1986 or whether the concept holds a broader centrality to the concept of recognition of a foreign divorce by the Irish courts. The recognition of a foreign divorce can have important implications for parties seeking to remarry, the possibility of a subsequent marriage being held to be invalid, succession rights, financial maintenance, family home protection, orders and ancillary reliefs made in the foreign divorce.
The Constitution and the Common Law on recognition of a foreign divorce in Ireland
Article 41.3.3° of the Constitution explicitly provides recognition of a divorce from a foreign jurisdiction. Article 41.3.3° played a vital role in recognising a foreign divorce prior to the enactment of the 1986 Act. The meaning and effect of Article 41.3.3° was considered by the superior courts in Mayo –Perott v. Mayo-Perott,[4] Bank of Ireland v. Caffin[5] and Gaffney v. Gaffney[6] where it was established that the domicile of the parties was to be a determining factor in the recognition of a foreign divorce in Ireland. This approach was subsequently endorsed in T v. T[7] and ED (K) (orse KC) v C (M)[8]. The constitutional referendum in 1986 to introduce divorce into Ireland was defeated by an overwhelming majority of sixty three per cent to thirty seven per cent highlights society’s attitude to the issue of divorce. As far back as 1989 Woulfe was critical of the of changing the common law to recognise a foreign divorce granted prior to the 1986 as it would have a major impact on the way people arranged their affairs including tax and succession arrangements.[9] The Supreme Court in W v. W and the Attorney General[10] held that the law on dependent domicile to be unconstitutional. This decision resulted in the provisions of domicile outlined in the 1986 been given retrospective affect by the courts.
Domicile and Recognition of Foreign Divorces Act 1986
Prior to the introduction of the Domicile and Recognition of Foreign Divorces Act 1986 (The 1986 Act) the common law governed the issue. Under the common law rules the domicile of a wife was to be dependent on the domicile of her husband.[11] The Irish courts would recognise a foreign divorce prior to the enactment of the 1986 Act, if at the time of issuing the proceedings, both parties were domiciled in the country granting the divorce, due to the dependent domicile rule in practice this meant the if the husband was domiciled in the country granting the divorce then the Irish courts would recognise the decree of divorce. The enactment of the 1986 Act removed the common law rule of a wife’s dependent domicile and introduced independent domicile for a married man and woman. Abolishing the notion that a married wife acquired the domicile of her husband. The 1986 Act allowed the Irish courts to recognise a foreign divorce in a situation where only one of the parties to the marriage was domiciled in the country granting the decree of divorce.[12] Section 2 of the 1986 Act expressly states that any question as to “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.”[13] This is a clear expression by the legislature that the 1986 Act is not to be taken in any way as being retrospective. However, the subsequent case law in W v. W as outlined does not adhere to section 2 of the 1986 Act. Part III of the Family Law Act 1995 allows an Irish court to make certain financial provision where a divorce has been granted in a foreign jurisdiction, hence why the recognition of a foreign divorce is desirable by many parties. Shatter is of the opinion that although domicile is central to the 1986 Act, the act itself “merely modifies the rule of law” that a divorce granted in a foreign jurisdiction will only be recognised if both parties are domiciled in that jurisdiction. Shatter writing prior to the H v. H is of the opinion that Part III of the 1995 could be used by the judiciary to recognise a valid divorce of another jurisdiction. However, the case law on the matter reveals that the judiciary have not used Part III of the 1995 Act to recognise all foreign divorces validly granted in another foreign jurisdiction.
Family Law (Divorce) Act 1996
The Family Law (Divorce) Act 1996 (The 1996 Act) was a major milestone in the recognition of foreign divorces. The 1996 Act changed the law to allow recognition of foreign divorces to be granted on the basis of residence in the State granting the divorce rather than solely on domicile. Section 39(1) of the 1996 Act lists the requirements needed for the recognition of a foreign divorce to be, either spouse to be domiciled in the state on the date of the institution of the proceedings or either spouse to be ordinarily resident in the state throughout a period of one year ending on the date of the institution of proceedings. The 1996 Act is to be considered a welcome development in broadening the scope in which a foreign divorce could be recognised in Ireland. However, it must be noted that the 1996 Act did not make any reference to broadening the scope to allow foreign divorces to be recognised on the basis of residence rather than domicile in any retrospective capacity. The 1996 Act has been criticised for not containing a retrospectivity clause in the legislation and putting the recognition of foreign divorces on an unequal footing based on the date they were entered into.[14] However, this criticism must be considered in light of the public policy and societal attitudes to divorce at the time of the enactment of the Constitution in 1937 right up to the enactment of the 1996 Act.
EU legislation
The first provision granting recognition of a foreign divorce within the European Union was introduced in the Council Regulation 1347/2000. This regulation was subsequently repealed and replaced by Council Regulation EC No. 2201/2003, more commonly referred to as Brussels II bis which came into effect on the 1st March 2005. The regulation was introduced into Irish law by the European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005. A divorce granted in any European country, with the exception of Denmark, will be recognised in Ireland if one of the parties was domiciled or ordinarily resident in the country that granted the decree of divorce. Although McNamara and Martin welcome the modernisation of the recognition of a foreign divorce through the introduction of Brussels Bis II, they are critical of the Oireachtas to enact legislative reform, instead leaving it to the judiciary to apply the current sporadic legislation. The Supreme Court in DT v. FL[15] held that due to the absence of a clear expression to grant retrospectivity to the regulation, Brussels Bis II was found not to contain retrospective effect.
Case Law prior to the H v. H Supreme Court Decision
The most prominent case prior to the H v. H case is arguably the case of G McG v. DW.[16] In that case the divorce was granted in 1985, prior to the enactment of the 1986 Act. The notice party in the case argued that they had acquired a domicile of choice in England having been resident there for one year. McGuinness J referred to the decision in W v. W by Blayney J who referenced two English cases Travers v. Holly[17] and Indyka v. Indyka[18] concluding that the common law rule is judge made law and is not “immutable” and that the question of whether a foreign divorce should be recognised should be answered by the court in light of present policy.[19] McGuinness J also held that the Family Law Act 1995 and the Family Law Divorce Act 1996 established jurisdiction to allow the Irish courts to recognise a foreign divorce on the same grounds that the Irish courts could grant a decree of divorce within the jurisdiction, namely, on the basis of one year residence within the jurisdiction the divorce was granted. In this interpretation McGuinness dismissed the central concept of domicile to the recognition of a foreign divorce under the 1986 Act. In her judgment McGuinness scrutinised the wording of section 5 of the 1986 Act highlighted the contrast with the wording in the 1996 Act that it did not contain any phrase “if but only if”.[20] The judge drew the conclusion that the 1986 Act did not “prevent the court from developing the rules of recognition in reliance on the decision of the Supreme Court in W v. W that common law rules are judge made law and may be modified depending on the current policy of the court”[21] McGuinness J to further back up her arguments for her decision relied on the judgement of Kingsmill Moore J in Mayo-Perott v. Mayo-Perott[22] who claimed the law on the matter was not satisfactory and on the public policy considerations that would seek to avoid the scenario of limping marriages.
In the case of MEC v. JAC[23] the decision in McG v. W was not followed. Kinlen J consider the question of whether the divorce obtained by the parties was entitled to recognition in Irish law on any basis other than domicile. In his decision Kinlen J acknowledged the short fallings in the law in relation to the recognition of domicile based on the date of the instituting of proceedings and stated that judicial intervention would not provide a satisfactory resolution due to the many consequences associated with retrospectively altering the law on the issue. Kinlen J ultimately held that as neither party was domiciled in England in 1980 at the time the divorce was granted the divorce would not be entitled to recognition in Ireland.
The decision of Morris P in DT v. FL[24] perhaps, best highlights the centrality of domicile in relation to the 1986 Act. Morris P stated his agreement with the decision of McGuinness J in McG v W that recognition of a foreign divorce should be based on the parties residence rather than domicile in the common law but due to the facts of the case in DT v. FL he was bound to apply the law enacted in the 1986 Act.
The Supreme Court Decision in H v. H [2015] IESC 7
In the H v. H case, a wife who was resident but not domiciled in England in 1982 obtained a valid divorce from her husband, who was resident and domiciled in Ireland. The wife later initiated proceedings to have her divorce recognised in Ireland. The High Court held that the appellant was not domiciled in England either at the time of the institution of proceedings for divorce or at the time of the decree of divorce was granted. Edwards J in the High Court on a consultative case stated, sought the opinion of the Supreme Court to the following questions:
“1. Does the law of the State recognise the validity of a foreign divorce lawfully granted prior to the 2nd October, 1986 in a country where neither party to the marriage in question was domiciled at the date of the institution of the divorce proceedings but where one party was resident on that date?
- If the answer to the first question is “Yes”, is it sufficient that the party resident in the country granting the divorce is resident for the period required by the law of that country to ground its divorce jurisdiction?
- If the answer to the second question is “No”, for what period must a party to the marriage in question been a resident in the country granting the divorce in order to entitle such a foreign divorce to recognition in the State?”[25]
Dunne J’s judgement provides a detailed and accurate account of the development of the law in relation to the recognition of foreign divorces. She held the decision of the Supreme Court in McG v. W stated the decision in this case was wrongly decided. In contrast to the view established by McGuinness J in McG v. W Dunne J followed the decision in Mayo-Perott by Kingsmill Moore J stating that the Irish law on the matter to have been that the recognition of a foreign divorce depended upon establishing that the domicile of the parties was within the jurisdiction of the court issuing the decree and Dunne J believed this to still be the law in Ireland. Dunne J continuing to state the development of the law acknowledged that the decisions in T v. T and Gaffney v. Gaffney ensured the common law position did not deviate up to the early 1980s.
Dunne J then develops the issue following the enactment of the 1986 Act. Since the enactment of the 1986 Act Barr J in CM v. TM[26] and CM v. TM (No. 2)[27] stated that the notion of dependent domicile was a relic of society and did not survive the enactment of the Constitution. Dunne J provides an in depth analysis of the cases of McG v. W and MEC v JAC[28] highlighting the conflicting decisions of both cases. Dunne J also referenced the case PK v. TK[29] stating that she did not believe that Fennelly J in his judgment was suggesting that there may be an alternative basis to domicile for recognising a decree of divorce granted in a jurisdiction other than a jurisdiction where one of the parties was domiciled. Dunne J places much emphasis on the Oireachtas not availing of the opportunity to amend or repeal the 1986 Act when enacting the 1996 Act. The lack of concern shown by the Oireachtas to the scenarios created by the 1986 Act when given the chance to change the law are to be taken as the policy of the state on the matter. Although Dunne J is correct to state that public policy of the time of the 1986 Act was to abolish dependent domicile it was also open to the Oireachtas to include a retrospective clause in the act. By this logic it may also be argued that W v. W was wrongly decided. It is not unreasonable to assume that the Oireachtas holds a great deal of consideration to the way parties arrange their affairs in contemplation of how the law will govern the issue of recognition of a foreign divorce. Concluding her judgment Dunne J reiterates that domicile is central to the 1986 Act and that the law prior to that Act
Clarke J concurring with the judgment of Dunne J was also of the opinion that the matter should be left to the Oireachtas to enact legislation to bring clarity and consistency to the recognition of foreign divorces. It may be argued that Clarke J takes a very philosophical approach to the issue of the common law being a tool of retrospectivity of the judiciary, referring to R. and ors v. tArd-Chláraitheoir and ors [30] in the judgments Hardiman and Clarke JJ both were cautious of a development of the common law that may be considered over reaching and a breach of the separation of powers. Clarke J develops at length in his judgment the potential for unfairness in the event that legislation is to have a retrospective affect. Both Dunne and Clarke JJ both agree that the position of the common law prior to the legislative developments over the last three decades was a foreign divorce would only be recognised in Ireland is both parties were domiciled in the jurisdiction granting the divorce and that due to the doctrine of dependent domicile still being in force, the common law test would be satisfied if the husband was domiciled in the jurisdiction granting the divorce. Clarke J also places much emphasis on the necessity to ensure predictability in the law as people arrange their affairs on the assumption that the law will remain the same or at least will not change retrospectively. In his judgment Clarke J expressed his opinion that the law of the time should not be reinterpreted to reflect the recognition of the divorce had it been granted in a more recent period. It should also be noted that Clarke J did not make reference to the issue of domicile or the 1986 Act in his judgment instead preferring to leave the discussion to Dunne J in her judgment.
O’Donnell J dissenting, lists three reason for his dissent;
- Section 5 of the 1986 Act should not be interpreted as creating a permanent public policy of domicile as a ground for recognising or denying recognition of a foreign divorce granted prior to 1986.
- Establishing a rule of recognition of foreign divorces on the basis of habitual residence would not be in conflict with present public policy.
- The inconsistency in judicial decisions on the recognition of foreign divorces is not a valid reason to prevent the adjusting of the rule of recognition as was recognised in W v. W.
In outlining his reasons for dissenting, O’Donnell J while recognising the centrality of domicile to the 1986 Act believes that it is for this very reason that the act should not be afforded any consideration when determining the matter due to its outdated public policy. As O’Donnell J outlines his dissenting decision he articulates the possibility of an increase in the number of limping marriages something that is undesirable for the parties including third parties involved.
O’Donnell J continues to outline in his judgment that the centrality of domicile to the 1986 is no longer public policy and should therefore not be used as a reason to prevent a party’s residence as a means of recognition of a foreign divorce granted prior to 1986. In contrast to Dunne J O’Donnell J is of the opinion that the failure of the legislature to introduce legislation to amend the current situation is to be taken as an invitation to the judiciary to discontinue the current situation of injustice based on time and location. O’Donnell J is also of the opinion that the decision in McG v. DW is to be taken as correct. The approach taken by the House of Lords in Indyka when the concept of the centrality of domicile to the recognition of a foreign divorce was abandoned in favour of habitual residence is endorsed by O’Donnell J.
Conclusion
Through an analysis of the development of recognition of foreign divorces in Ireland the apparent harshness of the legislation to prevent retrospectivity is called into question in H v. H. However, the perceived harshness of the decision provides consistency and respects the development of society’s attitude to divorce. Criticism of the inertia of the Oireachtas to enact further legislation to encompass each development in the recognition of foreign divorces in a single act granting equality before the law for divorced couples is to be welcomed. However, the decision by Dunne J in H v. H refusing to introduce judge made law and respecting the separation of powers while also bringing consistency to the area of law is also to be commended. It is clear that domicile only remains central to the recognition of foreign divorces granted prior to the enactment of the 1995 Act. The current situation as outlined extensively by Dunne J in her judgment in H v. H results in parties who have been granted a valid divorce being treated significantly differently before the law based on the date and location of their divorce being granted. Due to the diffusion, of the once contested issue of divorce, it is unlikely that the Oireachtas would be subjected to any objections to an enactment of legislation departing from the concept of domicile and granting equality before the law to the recognition of foreign divorces based on the residence of the parties at any date in time. The 1986 Act continues to govern the recognition of divorce decrees granted prior to the enactment of the 1986 Act and non-EU foreign divorces applied for after 2nd October 1986. The subsequent case law on the issue of the recognition of foreign divorces culminating in the decision in H v. H highlights the centrality of domicile to the 1986 Act. In Ireland the current situation on the recognition of foreign divorce allows for three distinct possible outcomes depending on the date the divorce was instituted. Both pre 1986 and divorces governed by the 1986 Act will only be recognised by the Irish courts depending on the domicile of the parties. A foreign divorce granted after the 1995 is governed by the 1995 Act and will be granted on the condition of domicile or habitual residence in the jurisdiction for one year prior to the granting of a decree of a divorce. Divorces granted in a foreign European jurisdiction other than Denmark since 1st March 2001 are governed by the Brussels bis II regulation which is dependent upon the habitual residence of the parties rather than their domicile. Although written prior to the H v. H case, McNamara and Martin agreeing with Shatter are critical of the differences stating that the law on the issue is a “shambles [that] is unnecessarily complex” due to the lingering of the concept of domicile as a central issue aptly summarises the current state of the law on the issue of recognition of a foreign divorce.[31]
Bibliography
The Constitution
Article 41.3.3°
EU Legislation
Council Regulation 1347/2000
Council Regulation EC No. 2201/2003
Irish Legislation
Domicile and Recognition of Foreign Divorces Act 1986
European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005
Family Law Act 1995
Family Law (Divorce) Act 1996
Cases
Bank of Ireland v. Caffin [1971] IR 123
B(R) v. S(A) (orse AB) [2002] 2 IR 428
CM v. TM [1987] IR 152
CM v. TM (No. 2) [1992] 2 IR 52
DT v. FL [2002] 2 ILRM 152
DT v. FL [2009] 1 IR 434
ED (K) (orse KC) v C (M) [1985] IR 697
Gaffney v. Gaffney [1975] IR 133
G McG v. DW [2000] 1 IR 96
H v. H [2015] IESC 7
Indyka v. Indyka [1969] 1 AC 33
JW v. JW and the Attorney General [1993] 2 IR 476
MEC v. JAC and JOC and the Attorney General [2001] 2 IR 339.
Mayo-Perott v. Mayo-Perott [1958] IR 336
PK v. TK [2002] 2 IR 186
- and ors v. tArd-Chláraitheoir and ors [2014] IESC 60
Re Joyce [1946] IR 277
T v. T [1983] IR 29
Travers v. Holly [1953] P. 246
Books
Louise Crowley, Family Law, (Round Hall, first edition, 2013)
Alan Shatter, Family Law, (Buttersworth, Fourth Edition 1997)
Academic Articles
Annual Review of Irish Law 2015, 1(1), 117-155
Dervla Browne, “Recent Developments in the Law Governing the Recognition of Foreign Divorces” Irish Journal of Family Law 2002, 5(4), 8-12.
Richard McNamara & Frank Martin, “Brussel Calling: The Unstoppable Europeanisation of Irish Family Law” Irish Journal of Family Law 2006, 9(3), 8-21.
Seamus Woulfe, “Dependent Domicile – Retrospective Abolition” Irish Law Times 1989, 7 26-27
[1] Re Joyce [1946] IR 277.
[2] B(R) v. S(A) (orse AB) [2002] 2 IR 428.
[3] H v. H [2015] IESC 7.
[4] Mayo-Perott v. Mayo-Perott [1958] IR 336
[5] Bank of Ireland v. Caffin [1971] IR 123.
[6] Gaffney v. Gaffney [1975] IR 133.
[7] T v. T [1983] IR 29.
[8] ED (K) (orse KC) v C (M) [1985] IR 697.
[9] Seamus Woulfe, “Dependent Domicile – Retrospective Abolition” Irish Law Times 1989, 7 at 27.
[10] W v. W and the Attorney General [1993] 2 IR 476.
[11] Louise Crowley, Family Law, (Round Hall, first edition, 2013) at paragragh 9-09.
[12] Louise Crowley, Family Law, (Round Hall, first edition, 2013) at paragragh 9-10.
[13] Domicile and Recognition of Foreign Divorces Act 1986 section 2.
[14] Annual Review of Irish Law 2015, 1(1), at 135.
[15] DT v. FL [2009] 1 IR 434.
[16] G McG v. DW [2000] 1 IR 96.
[17] Travers v. Holly [1953] P. 246.
[18] Indyka v. Indyka [1969] 1 AC 33.
[19] Dervla Browne, “Recent Developments in the Law Governing the Recognition of Foreign Divorces” Irish Journal of Family Law 2002, 5(4), 8-12.
[20] Dervla Browne, “Recent Developments in the Law Governing the Recognition of Foreign Divorces” Irish Journal of Family Law 2002, 5(4), 8-12.
[21] G McG v. DW [2000] 1 IR 96.
[22] Mayo-Perott v. Mayo-Perott [1958] IR 336.
[23] MEC v. JAC [2001] 2 IR 399
[24] DT v. FL [2002] 2 ILRM 152.
[25] H v. H [2015] IESC 7.
[26] CM v. TM [1987] IR 152.
[27] CM v. TM (No. 2) [1992] 2 IR 52.
[28] MEC v. JAC [2001] 2 IR 399.
[29] PK v. TK [2002] 2 IR 186.
[30] R. and ors v. tArd-Chláraitheoir and ors [2014] IESC 60.
[31] Richard McNamara & Frank Martin, “Brussel Calling: The Unstoppable Europeanisation of Irish Family Law” Irish Journal of Family Law 2006, 9(3), 8-21.
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