For Written Answer on : 26/01/2022
Question Number(s): 135 Question Reference(s): 3735/22
Asked by: David Stanton T.D.
To ask the Minister for Justice when she expects proposals to be progressed for the recognition of foreign divorce in Ireland; and if she will make a statement on the matter.
The Domicile and Recognition of Foreign Divorces Act 1986 governs the recognition of foreign divorces granted on or after the coming into operation of the Act on 2 October 1986. Section 5 of the 1986 Act provides that a foreign divorce may only be recognised in Ireland if it was granted in the country where either spouse was domiciled on the date the divorce proceedings were instituted. The determination of “domicile” includes an assessment of the intention of the person to remain indefinitely in the foreign jurisdiction.
Recognition of foreign divorces granted prior to the coming into operation of the Domicile and Recognition of Foreign Divorces Act 1986 is governed by common law domicile rules which are now consistent with those in the 1986 Act.
The recognition in Ireland of a divorce, legal separation or marriage annulment granted in another EU Member State on or after 1 March 2001 is governed by EU Council Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (also known as the Brussels II bis or the Brussels IIa Regulation). This Regulation provides for EU judicial co-operation and recognition and enforcement of judgments in cross-border matrimonial matters. Under the Regulation, divorces, legal separations or marriage annulments granted in all EU States, with the exception of Denmark, are entitled to recognition if granted in accordance with jurisdictional criteria specified in the Regulation. Habitual residence is the key governing criterion for recognition. The Domicile and Recognition of Foreign Divorces Act 1986 no longer applies to the recognition of divorces covered by the Regulation.
Part 19 of the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020 makes provision for the recognition in Ireland of divorces granted in the United Kingdom or Gibraltar and has been in operation since 11.00 p.m. on 31 December 2020.
Where there is an issue as to whether a foreign divorce is entitled to recognition, section 29 of the Family Law Act 1995 allows a person to apply to court for a declaration as to marital status, including a declaration as to whether a foreign divorce is entitled to recognition in the State.
The Thirty-Eighth Amendment of the Constitution (Dissolution of Marriage) Act 2019 was signed into law on 11 June 2019 following its approval by the people in a referendum on 24 May 2019.
That Act deleted the following subsection from Article 41.3 of the Constitution:
“3° No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.”,
and substituted that subsection with the following:
“3° Provision may be made by law for the recognition under the law of the State of a dissolution of marriage granted under the civil law of another state.”
The amendment will permit a future change in the law to introduce greater consistency in the recognition of foreign divorces.
The Law Reform Commission, as part of its Fifth Programme of Law Reform, is examining the recognition of foreign divorces. When the expert report of the Law Reform Commission is completed, it will provide valuable guidance for the development of proposals for legislation on the recognition of foreign divorces.