Factual and Legal Background
The applicant is alleging that his marriage was dissolved by a decree of divorce in Lithuania. The respondent is responsible for managing and controlling the system of registration in Ireland. The applicant sought an appeal to a decision refusing to recognise the applicant’s decree of divorce given in accordance with Lithuanian law. Leave to apply for judicial review was granted for an order of certiorari for quashing the decision of the respondent refusing to recognise the applicant’s Lithuanian divorce decree.
The applicant entered the State in January 2005 under a student visa and his entitlement to remain in the State as a student was renewed at various times. A year later in 2006 he married a woman R.B., a further year later in 2007 the relationship broke down. In 2011 the applicant met J.S. a relationship developed between them, and they began co-habiting. Divorce proceedings were issued against R.B. in the regional the Alytus Regional District Court in Lithuania. The applicant did not have an address for R.B. The first order of the Alytus Region District Court in Lithuania, dated 22nd October, 2013, permitted substituted service of the applicant's intention to pursue a divorce from R.B. by way of public notice on the Lithuanian Courts' website.
The matter was then adjourned to 11th November, 2013, when a further order issued notifying R.B. of the place, date and time of the preliminary court hearing on 5th December, 2013, of the applicant's claim and summoning her to attend, was again served by way of substituted service on the designated website in accordance with Lithuanian law. No appearance was made by R.B. at the preliminary hearing. A decree of divorce was granted by the Alytus Region District Court pursuant to a judgment issued on 27th December, 2013. The judgment noted that an appeal could be brought within 30 days to the Kaunas Regional Court. Following the finalisation of his divorce in the Lithuanian court and the end of his relationship with A.G., the applicant became engaged to marry J.S. in or about 12th April, 2014.
The applicant made an appointment with the registry office in Roscommon on 5th June, 2014, in order to give notice of their intention to marry in accordance with the Act of 2004. By letter dated 5th June, 2014, Ms. Lally of the Civil Registration Office, Roscommon requested the applicants to complete an Annex 1 Form re Foreign Divorce(s) comprising the ‘Certificate Referred to in Article 39 Concerning Judgments in Matrimonial Matters’. This was completed by the Alytus Region District Court on 23rd June, 2014. The completed certificate was sent by the applicant to Ms. Lally.
A letter was then sent from the General Registration Office, Roscommon to Ms. Lally stated that in order to authorise the marriage the office would have to be satisfied that the divorce granted was entitled to recognition under Irish Law as per the legislation in Council Regulation (EC) 2201/2003(“EC Regulation”). The letter highlighted that in this case, given that the judgment was given in default of appearance of the defendant, and it appeared that the claim and appendices were served on the defendant by way of public announcement only, the office stated they were not in a position to recognise the divorce. The letter further stated that if evidence could be obtained indicating that Ms R.B. accepts the divorce, the matter could be further reviewed. However, the marriage could not proceed in until that matter was resolved.
Section 46 of the Civil Registration Act 2004 sets out the procedures to be followed in respect of notification of marriage. In section 46 (1) (b) there is a requirement that a declaration be signed to ensure that there is not an impediment to the said marriage. Under Section 2(2)(b) of the 2004 Act, the definition of ‘impediment to marriage’ includes where “one of the parties to the marriage is, or both are, already married.” Section 46(7) of the 2004 Act further provides: “the registrar concerned may require each party to an intended marriage to provide him or her with such evidence relating to that party’s forename, surname, address, marital status, age and nationality as may be specified by an tÁrd Chláraitheoir.”
Article 3 of the EC Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility and provides the primary basis for the acquisition of jurisdiction to grant a divorce according to the EC Regulation is habitual residence. Article 3 provides that jurisdiction relating to divorce reside with the member states. Chapter III of the EC Regulation deals with the recognition and enforcement, with Article 21 (3) which states that any interested party may, in accordance with the procedures provided for in Section 2 apply for a decision that the judgment be or not be recognised. In Article 22 of the EC Regulation at (b) it is acknowledged that where a divorce is given in default of appearance and if the respondent is not served with the document or an equivalent document in sufficient time in order to enable the respondent to arrange for his or her defence unless it is determined that the respondent has accepted the judgment unequivocally then the divorce shall not be recognised.
The application in this case concerns a decision whose validity turns on the proper interpretation of the EC Regulation. The applicant contended that the respondent claims, in effect, that he has no power to satisfy as to the applicant's capacity to remarry in the State. The applicant argued that the respondents claim that the applicant is obliged to apply to court in the State for a declaration that his Lithuanian divorce may be recognised in the State. The applicant submitted that this interpretation of the EC Regulation flies in the face of its very objective, which is to provide for the recognition of judgments given, inter alia, in civil matters relating to divorce. The respondent denied that he informed the applicant that he was required to apply to court for recognition of his divorce.
The respondent contended that in the absence of any proof, the divorce obtained by means of substituted services by way of a public notice on the Lithuanian Court’s website in default of appearance of the other party, whose address was unknown to the applicant, the divorce as not recognisable in the Jurisdiction of Ireland. The applicant alleged that the respondent’s claim that the applicant was required to apply for the declaration from the Court that his Lithuanian divorce might be recognised in the state of Ireland, was discriminatory and contrary to the (EC) Regulation.
Decision of the Court
The decision of the court was addressed on three grounds: (i) Did the respondent make a decision notified by letter refusing to recognise the applicant's Lithuanian Divorce decree; (ii) In exercising statutory functions did the respondent fail to have regard to Article 22(b) of the EC Regulation by not considering that R.B. was served with notice of the divorce proceedings in accordance with Lithuanian law; (iii) Did the decision unlawfully discriminate against the applicant by applying a difference standard to Lithuanian law insofar as the respondent refused to accept that notice of divorce proceedings could be properly served by subservice.
Mr. Justice Hedigan concluded by refusing to grant an order of certiorari to the applicant. The Court held that the failure of the applicant to submit proof of publication of substituted service on the website of the Lithuanian Court was contrary to art. 22 (b) of the EC Regulation. The Court further suggested that the appropriate remedy for the applicant was to submit the proof of acceptance of divorce by the other party or in the alternative, apply under s. 29 of the Family Law Act 1995 seeking recognition of his divorce in Ireland. The Court held that the primary onus rested upon the applicant to furnish proof that his divorce was properly obtained and capable of being recognised.