The Common Law Position on the Recognition of Foreign Divorces.
According to the Central Statistics Office, in the twelve months prior to April 2023, over 64,000 people departed the state and there were 141,600 immigrants, 29,000 of which were returning Irish citizens. Resultantly, Family Law may see an increase in those seeking the recognition of foreign divorces.
Are Foreign Divorces recognised in Ireland?
Under The Domicile and Recognition of Foreign Divorces Act 1986, foreign divorces are recognised if either spouse was domiciled in the particular jurisdiction or state of the granting of the divorce at the date of commencement of proceedings. Prior to this Act, both spouses had to be domiciled for the foreign divorce to be recognised.
Domicile
The Supreme Court in T v L [2018] IESC 26 restated the position to be that “domicile was at the heart of the question of recognition of foreign divorces“. The meaning of Domicile is a complicated legal concept which states that a person is domiciled in a country where he or she is born, or having emigrated, or where he/she is resident and intends to reside permanently.
The Domicile and Recognition of Foreign Divorces Act 1986
The enactment of the Domicile and Recognition of Foreign Divorces Act 1986 changed the common law position in relation to domicile. Before 1986 the position was as follows:-
“a woman on marriage, no longer had an independent domicile of her own but acquired a domicile of independence so that her domicile become that of her husband. This was so regardless of residence. Thus, if a married women’s husband acquired a domicile of choice in another jurisdiction, his wife acquired a domicile of dependence in that jurisdiction regardless of whether they lived there or not’.
The 1986 Act abolished the wife’s dependant domicile providing that “the domicile of a married woman shall be an independent domicile and shall be determined by reference to the same factors as in the case of any other person”. Section 5 of the Act provides for the Irish law position that a foreign divorce may only be recognised in Ireland if:-
- The foreign divorce was granted in the country where either spouse was domiciled,
- on the date the divorce proceedings were instituted.
Divorces granted in an EU State
Generally, an EU divorce will be automatically recognised in Ireland without the requirement for an application to be made to a Court in Ireland. Since 1st March 2001, this area of law is governed by EU Regulation 2201/2023 also known as Brussels II bis or Brussels II a Regulation. However, if there is a dispute as to whether or not a foreign divorce should be recognised in Ireland, Section 29 of the Family Law Act 1995 permits a person to make an application to the Court for a declaration that a divorce is entitled to be recognised within the state.
Contact Us
For further information on the recognition of foreign divorces or any other family law matter, please do not hesitate to contact our family law solicitors Brendan Dillon, Aoife Cathcart or Emma Dillon on 012960666.
