Foreign Divorce

DOMICILE AND RECOGNITION OF FOREIGN DIVORCES

The recognition of foreign divorces and the concept of domicile are probably the subject most examined by the higher courts in Ireland in relation to family law. This is so, principally, because spouses who divorced abroad and remarried subsequently raised the divorce as invalid to avoid having to pay maintenance or lose a property when the second marriage failed. By successfully challenging their own divorce on grounds of domicile they were able to claim that they were still married to the first wife and that the second marriage was invalid thereby evading their matrimonial duties, responsibilities and indeed inheritance to their second wife and family.

A person's domicile is regarded as their permanent place of residence and the recognition of foreign divorces here in Ireland is dependent on ones domicile at the time of the foreign divorce. Before the enactment of the constitution in 1937 the domicile of a wife was regarded as being that of her husband, a “dependent domicile”. The Irish courts would recognise a foreign divorce if the husband was domiciled in the country where the divorce decree was granted.

The Supreme Court in Gaffney –v- Gaffney [1975] restated the basic rule that “the courts here do not recognise decrees of dissolution of marriage pronounced by foreign courts unless the parties were domiciled within the jurisdiction of the foreign court in question”. Subsequently, in the High Court case C. (M.) –V- T. (M.) [1991] the court held that the above rule, on dependent domicile was inconsistent with the constitution. That statement of law was upheld in the Supreme Court in W –v- W [1993] which held that the concept of dependent domicile had not survived the coming into force of the Constitution. The decision in W –v- W affected foreign divorces obtained prior to 2nd October 1986 and meant that a foreign divorce would be recognised if either party were domiciled at the date of the decree of divorce in the country whose court granted the divorce.

Meanwhile the statute law here had changed with the introduction of the Domicile and Recognition of Foreign Divorces Act, 1986 which provided that “for the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled”

Domicile

What is domicile? Domicile is a concept of general law or common law. It is broadly interpreted as meaning residence in a particular country with the intention of residing permanently in that country. Every person acquires a domicile of origin at birth. So an Irish person living abroad for many years may still be domiciled here in Ireland if the intention and actions in support of that intention are to someday return to live in Ireland. Therefore there may be many Irish people who have obtained valid divorces abroad because of their residence in that foreign country but their divorces are not recognised here because they were not domiciled in the foreign country at the time of their divorce. On return to Ireland under present law they will not be allowed remarry.

As English case law developed the domiciled based recognition rule was expanded to include such criteria as “habitual” or “ordinary” residence for a specified period of time. However it was made quite clear that this was not to be the case in Ireland. In the High Court case K. (P.) -v- K. (T.) [2000] it was stated “However it is not one of residence not indeed of citizenship but of domicile in relation to the Applicant's preliminary issue as the validity of the divorce”.

Changing Domicile

Individuals can abandon their domicile of origin for a “domicile of choice” in another country but they must prove it. As stated in the High Court case K.E.D. -v- M.C. [1984] “Domicile is a mixed question of law and fact. A changing domicile depends on whether the proper inference to be drawn from the established facts and from the persons conduct is that he had abandoned his domicile of origin and had chosen a different domicile”. The burden of proving a change in domicile lies upon the person who alleges that a change has occurred. In T. -v- T. [1983] this matter was addressed in detail. “It is well settled that the burden of proving a change of domicile of origin to a domicile of choice is on those who assert it. As Black J. said In Re Joyce, Corbett -v- Fagan, Now whatever principal view may be possible on any other aspect of the law of domicile one principal at least is beyond doubt, namely, that the domicile of origin persists until it is proved to have been intentionally and voluntarily abandoned and supplanted by another”. In the Supreme Court case, K. -v- K. [2002] reference was made to Sillar Hurley –v- Windbush [1995] where it was held that proper inference to be drawn where a person is resident in the jurisdiction is that they form the intention to permanently remain there indefinitely. A person could not alter his domicile by mere statements to the contrary. In a most recent Supreme Court case T. (D.) -v- L. (F.) & Anor. [2003] the Chief Justice, Justice Keane in reference to the Appellant not satisfying the positive element of the test, stated “No more do I consider that he formulated any intention of abandoning Ireland as his domicile of origin. The only evidence which is consistent with this intention was the sale of the family home and the cancelling of his membership of clubs. If one weighs these factors against the evidence that he returned for his summer holidays, that he visited his family in Ireland on a number of occasions, that he arranged for his wife to return to Ireland when difficulties arose in the marriage, in my view it is clear beyond doubt that he never abandoned his domicile of origin”.

Brussels II

Those who have obtained divorces which were initiated in Member States of the European Union since 1st March 2001 are governed by an entirely different regime, that of Council Regulation ( EC 1347/2000) of 29th May 2000 on Jurisdiction and the Recognition and Enforcement of Judgements in Matrimonial Matters and in Matters of Parental Responsibility for Children of Both Spouses, generally known as Brussels 11. This regime of recognition bases jurisdiction in the main on habitual residence, although a subsidiary alternative role is played by domicile and/or nationality. What effect this regime will have on Irish domestic law is unclear but we can expect that some reform to the Irish system will be required. However it may take court cases to solve the recognition of foreign divorces and whether “domicile” is replaced by “residence”.

Conclusion

Foreign divorces will be recognised in the State if either party were domiciled in the country or state granting the divorce at the time of the granting of the divorce. This applies to the parties to every marriage, irrespective of where and under what law the marriage takes place and irrespective of the domicile of the parties at the time of the marriage (Section 1. (2) Domicile and Recognition of Foreign Divorces Act, 1986).

A divorce granted in any of the following, England and Wales, Scotland, Northern Ireland, The Isle of Man or the Channel Islands will be recognised here if either spouse was domiciled in any of those jurisdictions. In other words and for example, if either party were domiciled in England and they obtained their divorce in the Channel Islands it will be recognised here.

A foreign divorce will not be recognised here if both of the parties were not domiciled in the country or state where it was granted. For example if Patrick and Mary lived in England (or the USA etc) and subsequently separated and divorced and came back to live in Ireland, the place of their domicile of origin, their divorce, although valid in England (or the USA for that example) because they were resident there, will not be valid here unless they can prove a change of domicile for the time they were abroad. They will not be allowed remarry here.

The exception to the above is where spouses are not domiciled in the State (Bill and Hillary were domiciled in the USA). Their foreign divorce will be recognised here if it is recognised in the USA. So if Bill and Hillary are domiciled in the State of New York and get divorced in Haiti, their divorce will be recognised here if it is recognised in New York.