New divorce laws required over loophole
The Supreme Court judgment related 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 party to the relevant marriage was domiciled at the date 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 so there is, as far as possible, a uniform approach.
The 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, the woman obtained a divorce there in the early 1980s and the Supreme Court noted that 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, during 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 Attorney General, represented by Cormac Corrigan SC, was a party to the case, which the High Court referred 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 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 ref-lected 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.
The act provided that a divorce obtained in England, Wales, Scotland, Northern Ireland, the Isle of Man, and the Channel Islands shall be recognised here if either spouses was domiciled in any of those jurisdictions.
In her judgment, supported by three of the judges, Ms Justice Elizabeth Dunne said that 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.
It may have been thought that the recognition of foreign divorces was resolved by that act, she said. However, the ending of the constitutional ban on divorce in 1995 provided that the courts here 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.
In his separate, concurring, judgment, Mr Justice Frank Clarke said he agreed with Ms Justice Dunne’s analysis. It would not be justified to retrospectively reinterpret the common law, at the remove of a significant period in time, so as to effect the recognition of a foreign divorce in a way which is very different to what would have been the case at the time when the divorce decree was granted, he said.
In a dissenting judgment, Mr Justice Donal O’Donnell said while he agreed the matter should be addressed through legislation, he believed the court should do what is within its power to “limit the unnecessary distress and cost” to people domiciled in Ireland.
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