JURE summary

JURE summary

This case, examined by the Irish Supreme Court (hereinafter 'the Supreme Court'), concerned the question of recognition in Ireland of foreign divorces.

M. H. (hereinafter 'the plaintiff') and G. H. (hereinafter 'the defendant') were married and living in Ireland. In 1978, the plaintiff left the defendant and the family home, allegedly because the defendant had been violent toward her, and went to reside in England. In 1981, she applied to an English court for a divorce decree, which was granted without financial relief or provision, and made final and absolute several months later.

In 2003, she came back to Ireland; in 2005, she applied to the Irish courts for a declaration that the divorce decree granted by the English court could not be recognised in Ireland, a declaration that the marriage between the parties subsisted, and a decree of divorce.

The Circuit Court (hereinafter 'the Court of First Instance') ruled that the decree of divorce made by the English court was valid in Ireland. The plaintiff appealed the decision to the High Court (hereinafter 'the Court of Appeal'), which sought the opinion of the Supreme Court on the issue of foreign divorces.

The Supreme Court went over the history of the matter in Irish law.

Before 1986, the common law rule of 'dependent domicile' meant that a married woman's domicile was dependent upon her husband's, and a divorce could only be recognised in Ireland if it had been granted by the courts of the husband's domicile.

The Domicile and Recognition of Foreign Divorces Act 1986 (hereinafter 'the 1986 Act') (¹) abolished that rule. It also provided that a divorce granted in England would be recognised if either spouse was domiciled there.

In 1993, the Supreme Court held in the case of W. v W. that the rule of dependent domicile did not survive the enactment of the Irish Constitution.

In 1995, an amendment to the Irish Constitution removed the ban on divorce. Subsequently, the Family Law (Divorce) Act 1996 (hereinafter 'the 1996 Act') (²) was enacted. It's section 39(1)(b) provided that a divorce could be granted if 'either of the spouses was ordinarily resident in the State throughout the period of one year ending on [the date of the institution of the proceedings concerned]'.

While that act provided that the Irish courts could grant divorces on the basis of residence, it did not provide that a foreign divorce could be recognised on that basis.

However, the Supreme Court held in the case McG. v. W. (2000) that the common law rule regarding the recognition of foreign divorces could be extended to admit recognition on the basis of residence. Moreover, the new Brussels II Regulation (³), which came into force in 2005, provides that jurisdiction is based on habitual residence. The defendant relied on those legal developments to claim that the English decree of divorce could be recognised in Ireland.

The Supreme Court did not accept this argument. It admitted that a common law rule could be modified in accordance with the current policy of the court but held that this policy must be in line with the policy demonstrated in legislation. Given that the 1986 Act provided for the recognition of foreign divorces, whereas the 1996 Act did not, the common law rule on the recognition of foreign divorces could not be modified to make it consistent with the rules set in the 1996 Act.

(¹) Domicile and Recognition of Foreign Divorces Act 1986.

(²) Family Law (Divorce) Act 1996.

(³) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.