Many of our clients seek advice regarding the legality of divorces acquired outside of Ireland. The legality of foreign divorces can often be quite a complicated point of law. In some cases, a declaration to confirm the validity of the divorce is required. This must be sought through the family law Circuit Court in Ireland. This is governed by section 29 of the Family Law Act 1995 which can be accessed here.
Divorces Obtained within the EU
The recognition of divorces which are obtained in the EU is relatively straight forward. Once the divorce is granted in accordance with the laws of the Member State in which it was granted, it is very likely to be recognised in Ireland.
Recognition of divorces obtained within the EU is governed by the Brussels II bis Regulation. This is an EU law regulation which generally states that judgments given in competent courts in the EU in relation to separation, divorce or annulments should be recognised in all EU member states.
Brussels II bis Regulation is largely based on “habitual residence”. Habitual residence means resident with the settled intention of continuing this residency. Proceedings can only be initiated in a State where either spouse is habitually resident. If both spouses institute proceedings it will be accepted on a first come, first served basis. That is, the court in which the proceedings are first initiated will have jurisdiction to hear the case.
Divorces Obtained Outside the EU
The recognition of divorces which are obtained outside the EU is much more complicated. It is governed by the Domicile and Recognition of Foreign Divorces Act 1986. Recognition of divorces outside the EU is largely dependant on proving “domicile”. Domicile is not defined in the Act but is generally accepted to mean the place where a person regards as their fixed and permanent home. To be domiciled somewhere, it is important to be both physically present there, and to have an intention to remain there on a long term basis. A person’s domicile is generally accepted to occur at birth. This is known as the Domicile of Origin. However a person can change their domicile if they move from their country of birth with the intention to permanently reside in their new country of residence. This is known as a Domicile of Choice.
It is stated in the Domicile and Recognition of Foreign Divorces Act 1986 that a foreign divorce shall be recognised if granted in the country where either spouse is domiciled (Section 5(1)). This domicile must occur at the time that the divorce proceedings are initiated (Section 5(7)). That is, at least one spouse must be living, and intend to continue living, in the country where the divorce was granted. There is no minimum time period for which this spouse must be resident before the initiation of proceedings. However, it must be clear that they intend to reside there permanently.
If neither spouse is domiciled in the country where the divorce was granted at the time the proceedings were initiated, but the divorce is recognised where both spouses are domiciled, the divorce will be recognised under Irish law. If the spouses do not have the same domicile, the divorce must be recognised by both places of domicile to be recognised in Ireland (Section 5(4)).
Where there is any uncertainty as to the domicile of the spouses, a declaration of validity of the divorce, from the family law circuit court, may be necessary.
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