Limping Marriages – EU Divorces

One could be forgiven for thinking that a “limping marriage” is a term used to describe a marriage in serious difficulties or a symptom of an injured marriage!

However the term “limping marriage” developed as a result of marriages being recognised in one EU country and not in another. Prior to 2005, different approaches taken by different EU countries meant that your marriage and/or a subsequent Divorce could be recognised in some countries but not in others. However on the 1st of March 2005 Council Regulation (EC) 2201/2003 (Brussels II bis) was introduced with the aim of harmonising the law in this area. In other words, if a divorce/marriage is recognised in one EU country then it should be recognised in all subject to certain criteria as set out below.

The regulations state (Article 3) that a court can make a decision on a matter regarding divorce, separation or marriage annulment:

(a)    In whose territory:

–         The spouses are habitually resident or

–         The spouses were last habitually resident, insofar as one of them still resides there, or

–         The respondent is habitually resident, or

–         In the event of a joint application, either of the spouses is habitually resident, or

–         The applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

–         The applicant is habitually resident if he or she reside there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her “domicile” there;

(b)   Of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.

The main factor in all of this is the concept of habitual residence. Unfortunately this is not defined in the act. In Ireland habitual residence requires not only an intention to reside in a place but also a physical presence in that place for a considerable period of time. Habitual residency is only considered when looking at a Divorce Order obtained in an EU state (with the exception of Denmark) for all other countries the question is determined by domicile of the parties.

The consequences of an invalid foreign divorce can be vast and costly and may ultimately lead to a subsequent marriage being declared null. If you find yourself in a situation that you wish to remarry or are concerned about your future husband/wife’s previous divorce order you should make an appointment to me to discuss. You can contact me directly at laura[at]brophysolicitors.ie or by telephone to arrange an appointment.

Laura Gillen

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