Many people believe that all foreign divorces are recognised in Ireland. This is not the case. Prior to the Family Law Divorce Act, 1996, the recognition of foreign divorces was dependent on the question of “domicile”. Domicile is different to residence and generally refers to the country where you were born or the country where you can prove you intend to reside indefinitely and where all your business and family ties are. It sounds strange now, but prior to 1986, a wife in Ireland had no independent domicile and automatically took the domicile of her husband, no matter where she lived. Happily, this is no longer the case.
The recognition of foreign divorces is now treated the same as the recognition of foreign separations, annulments or marriages themselves. The situation within the EU is now covered by the Brussels II regulation which came into effect on 1st March 2001.
As a general rule, a foreign divorce will be recognised if it can be shown that
(i) one or both parties were habitually resident in the country where the divorce, separation, marriage or annulment has been obtained,
(ii) there is common nationality,
Foreign divorces will be recognised in Ireland if either the husband or the wife was domiciled in the State granting the divorce at the date when the divorce proceedings issued. Either party can apply for the divorce even if the person applying was not domiciled in the country granting the divorce. For instance if your husband is an American citizen and is domiciled in America but you are domiciled in Ireland, you can still apply for a divorce in America and it will be recognised in Ireland even though you yourself are not domiciled in the America. As long as one of the two parties is domiciled in the USA then the divorce should be recognised here.
You also have to comply with the laws of the other country when obtaining a divorce there. For instance if a country such as the UK says that you are entitled to a divorce if you have been permanently resident in the country for the previous 12 months and an Irish person travels to the UK and lives there for two months but says that they have been living there for 12 months, then that divorce will not be recognised in Ireland.
Why is this important?
It is often critically important in a situation where a divorce is obtained and the person remarries and subsequently dies. If the first marriage was never legally brought to an end, then the first wife may have substantial entitlements. More to the point, however, the second wife may have absolutely no entitlements.
In the event of any doubt, you can apply to court to seek a declaration as to the validity or non validity of a foreign divorce. Even the Revenue Commissioners can make such an application because it is often very relevant when it comes to the question of inheritance tax.
It should be emphasised however that even if a foreign divorce is recognised here, this does not bar the first wife from seeking financial support at any time.
In our experience the recognition of foreign divorces is an important issue but more and more we find that the recognition of foreign annulments and foreign marriages are also very important given the number of immigrants now living in Ireland. It often happens that the Registrar of Civil Marriages will refuse to perform a marriage ceremony if it is thought there is any doubt over the validity of a previous marriage/divorce/annulment and quite often a declaration is required from the Circuit Court concerning the validity or non validity of the marriage/annulment/divorce. This can be a complicated action as it often requires assistance from lawyers in the country granting the orders under question.
The main difference between the law as it stands now following Brussels II (the formal name for which is Council Regulation (EC) 1347/2000 on Jurisdiction and the Recognition and Enforcement of Judgements in Matrimonial Matters and in Matters of Parental Responsbility) is that following Brussels II, rules were governed more by “habitual residence” than domicile and/or nationality.
All of this can be very complicated and in conclusion we can say with certainty that a foreign divorce (or a foreign marriage, annulment) will be recognised in Ireland.
- If either party were domiciled in the country or state granting the divorce.
It can also be said with certainty that if neither party is domiciled in the country where the divorce is obtained then that divorce will not be recognised in Ireland even though it might be recognised in the country where the divorce was obtained. From a tax or inheritance point of view, this is a critical point.
There is one exception to this and that is where neither party is domiciled in Ireland but if for instance they are domiciled in the United States and they get divorced in Brazil then if that divorce is recognised in the United States, it will also be recognised here.
If you have been previously married and you are applying to the local registrar to marry in Ireland then you will need the following documents:
Checklist for couples applying to marry
- Make an appointment with Registrar to give notification of intention to marry (notification must be given at least 3 months in advance of ceremony; couples are advised to do so at the earliest possible stage)
Documents Required when giving Notification:
- Passport as photo ID (if not available, you should discuss this with the Registrar when making your appointment);
- If either party is divorced, original final decrees in respect of all previous divorces and if it is in a foreign language you will need an English translation duly certified by an official body or recognised translation agency.
- If either party is widowed, death certificate of the previous spouse and the civil marriage certificate for the first marriage
- If either party had a previous civil partnership dissolved, original final decree of dissolution in respect of all previous registered civil partnerships
- If either party is a surviving civil partner, a death certificate of the civil partner and the civil partnership certificate.
(Additional documentation may be required in some cases, such as where a divorce has been granted outside the State and it must be determined whether it is recognised under Irish law. The Registrar will advise what is required in each case).
Additional details required:
- the intended date of marriage,
- whether the couple require a civil or religious ceremony,
- the names and dates of birth of the two witnesses, and
- details of the proposed solemniser and venue
- PPS No if you have one (normally applicable only to Irish residents)
Documents Required When Notification Process Complete
- Declarations of no impediment (these is given to the couple by the Registrar when they are giving notification and should be signed by couple in Registrar’s presence)
Q. If I get a divorce in England, will this divorce be recognised in Ireland?
A. Provided the divorce was obtained legally in England and you complied with all their legal requirements, then almost certainly it will be recognised in Ireland.
Q. If my foreign divorce is not recognised in Ireland, what are the consequences?
A. It means you are still married to your first wife and if you married again, then the second marriage will not be recognised.
Q. If I have to apply to court to obtain a declaration that my foreign divorce is valid, how much will it cost and how long will it take?
A. If the application to the Circuit Court is straightforward and if a barrister is not required then the fee is generally in the region of €1,500 plus VAT. Certain cases can become complex and time consuming and the fee can increase. The application will generally be concluded within three months provided there is no appeal.