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2020.
Il principio del mutuo riconoscimento nell'ordinamento dell'Unione europea.
Vol. 74,
Issue. ,
Article contents
The Recognition of Foreign Divorces in Ireland: The Return of Travers v. Holley
Published online by Cambridge University Press: 17 January 2008
Extract
Over the course of the last hundred and fifty years or so the general trend in the laws of Western European countries has been, first, to make provision for judicial divorce and, second, to make it easier for parties to a marriage which has broken down to obtain such a divorce. This coupled with increased mobility has added to the significance of the law relating to the recognition of foreign divorces. The law's essential task is to strike the right balance between, on the one hand, being too restrictive, thereby creating “limping” marriages (i.e., marriages which are valid in one or more countries, but not others) and, on the other, being too generous, thereby sanctioning “quickie” divorces or divorces of convenience.1
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References
1. Clarkson, C.M.V. & Hill, J., Jaffey on the Conflict of Laws (1997) p.374.Google Scholar
2. Le Mesurier v. Le Mesurier [1895] A.C. 517.
3. Armitage v. Attorney-General [1906] P. 135.
4. [1953] P. 246.
5. [1969] 1 A.C. 33.
6. S. 46.
7. Although the term “the Republic of Ireland” is frequently used in both English and Irish materials, the correct expression is “Ireland”. See Walsh J's Foreword to Binchy, W., Irish Conflicts of Law (1988) pp.vii–viiiGoogle Scholar (“There is only one State in the world named ‘Ireland’ and references in contracts to the applicable law as ‘the law of the Republic of Ireland’ or ‘the law of the Irish Republic’ are wrong. Whatever justification may exist for English confusion there is none whatever for Irish ignorance.”).
8. Between 1701 and 1857 there were 317 bills of divorce passed by the Westminster Parliament; only nine divorce bills were passed by the Irish Parliament: see Hanna J in McM v. McM, McK v. McK [1936] I.R. 177, 188.
9. Matrimonial Causes Act 1857 (which came into force on 1 Jan. 1858).
10. [1896] 1 I.R. 603. See also Maghee v. M'Allister (1853) 3 Ir. Chy. Rep. 372.
11. [1895] A.C. 517.
12. Although in Mayo-Perrott v. Mayo-Perrott [1958] I.R. 336 Maguire CJ indicated (at 343) that, in Sinclair's case, Warren P had left open the question of the basis on which foreign divorces were recognised in Ireland, Kingsmill Moore J thought (at 346) that Warren P had accepted that Irish law on this point was the same as English law.
13. Further support for the view that, during this period, Irish law was the same as English law on this point can be gleaned from In re EEL, an Infant [1938] N.I. 56 (a decision of the Court of Appeal of Northern Ireland).
14. Art.73.
15. See Hanna J in McM v. McM, McK v. McK [1936] I.R. 177, 188–189.
16. See Maguire J in Mayo-Perrott v. Mayo-Perrott [1958] I.R. 336, 353.
17. Art.50.1.
18. [1958] I.R. 336. Webb, P.R.H. (1959) 8 I.C.L.Q. 744CrossRefGoogle Scholar. See also Jones, C., “The Non-Recognition of Foreign Divorces in Ireland” (1968) 3 Ir. Jur. (NS) 299.Google Scholar
19. At 344.
20. [1964] P. 144.
21. [1971] I.R. 123. See O'Reilly, J., “Recognition of Foreign Divorce Decrees” (1971) 6 Ir. Jur. (NS) 293.Google Scholar
22. At 129.
23. [1975] I.R. 133. Duncan, W., “Foreign Divorces Obtained on the Basis of Residence, and the Doctrine of Estoppel” (1974) 9 Ir. Jur. (NS) 59.Google Scholar
24. See Walsh J at 150. See also T v. T [1983] I.R. 29 in which an English divorce was recognised on the basis of domicile, although at the relevant time the parties were resident in Ireland.
25. [1985] I.R. 697. See also C v. C, unreported, High Court (Jul. 1975) (discussed by W. Duncan, (1974) 9 Ir. Jur. (NS) 59, 64–65), which involved basically the same scenario.
26. Law Reform (Miscellaneous Provisions) Act 1949, s.1.
27. [1969] 1 A.C. 33.
28. The rule in Indyka is “inherently vague and the source of much uncertainty where certainty is desirable”: Hague Convention on Recognition of Divorces and Legal Separations, Law Com. No.34, p.11, para.25 (1970).
29. See Finlay CJ at [1985] I.R. 697, 702. See also Blayney J in W v. W [1993] 2 I.R. 476, 500.
30. See Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws, Working Paper No.10–1981; Recognition of Divorces and Legal Separations, Working Paper No.11–1984; Report on Recognition of Divorces and Legal Separations, Report No.10–1985.
31. S. 1.
32. Working Paper No.10–1981, p.32, para.48.
33. See Report No.10–1985. The 1970 Hague Convention was the catalyst for the enactment of the Recognition of Divorces and Legal Separations Act 1971in Great Britain.
34. For consideration (and criticism) of this aspect of the legislation see Binchy, W., Irish Conflicts of Law (1988) pp.281–284.Google Scholar
35. For the purposes of this provision domicile is to be assessed at the date of the institution of the proceedings: s.5(7).
36. See PL v. An tArd Chlaraitheoir [1995] 2 I.L.R.M. 241 (H domiciled in Ireland; divorce obtained by W domiciled in England); M (C) v. M (T) [1988] I.L.R.M. 456 (W domiciled in Ireland; divorce obtained by H domiciled in England).
37. [1906] P. 135. Under English law there is a provision similar to s.5(4) of the 1986 Act in the context of the recognition of divorces obtained otherwise than by proceedings: Family Law Act 1986, s.46(2). Under the English legislation, however, at least one of the parties must be domiciled in the country where the divorce was obtained.
38. See M (C) v. M (T) [1988] I.L.R.M. 456.
39. [1975] I.R. 133, 152.
40. [1985] I.R. 697, 705.
41. [1991] I.L.R.M. 268. See also M (C) v. M (T) [1988] I.L.R.M. 456; CM v. TM (No.2) [1990] 2 I.R. 52.
42. [1993] 2 I.R. 476.
43. Ibid.
44. See also TN v. PJN (unreported), High Court, Mackenzie J (29 Jul. 1987).
45. For a brief survey of divorce recognition practice see Wardle, L. D., “International Marriage and Divorce Regulation and Recognition: A Survey“ (1995) 29 Fam. L.R. 497 and the national reports at 519–720.Google Scholar
46. See, in particular, Blayney J at 504.
47. See Egan J at 494; Blayney J at 505. O'Flaherty J agreed with the judgments of Egan and Blayney JJ. This decision had been foreshadowed by Duncan, W., “Foreign Divorces Obtained on the Basis of Residence, and the Doctrine of Estoppel” (1974) 9 Ir. Jur. (NS) 59, 66.Google Scholar
48. At 505.
49. See also Clancy v. Minister for Social Welfare (unreported), High Court, Budd J (18 Feb. 1994) in which W obtained a divorce in England after having acquired an English domicile, though H remained domiciled in Ireland throughout.
50. It should perhaps be noted that there appears to be no reported Irish decision which explicitly applies the rule in Armitage v. Attorney-General [1906] P. 135 (i.e., the rule that corresponds to s.5(4) of the 1986 Act). However, the judgment of Gavan Duffy J in In re McComisky, decd [1939] I.R. 573 suggests that a foreign decree which effects a change of status under a person's domiciliary law would be recognised at common law in Ireland. Furthermore, the rule in Armitage v. Attorney-General can be seen as being implicitly within the domicile principle on which the common law of Ireland is founded. Since the common law was preserved by Art.73 of the 1922 Constitution and Art.50.1 of the 1937 Constitution, it is still applicable in a case involving a divorce granted before the entry into force of the 1986 Act.
51. Domicile and Recognition of Divorces Act 1986, s.5(3).
52. By virtue of the Fifteenth Amendment of the Constitution (No.2) Act 1995, Art.41.3.2° of the Constitution, instead of prohibiting divorce, provides:
“A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that—
i at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
ii there is no reasonable prospect of a reconciliation between the spouses,
iii such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and
iv any further conditions prescribed by law are complied with.”
53. Judicial divorce had been introduced in Northern Ireland at the end of the 1930s: Matrimonial Causes Act 1939 (NI).
54. Family Law (Divorce) Act 1996, s.39(1). For the jurisdiction of the English courts see Domicile and Matrimonial Proceedings Act 1973, s.5.
55. [2000] 1 I.L.R.M. 107.
56. Domicile and Matrimonial Proceedings Act 1973, s.5.
57. [2000] 1 I.L.R.M. 107, 116.
58. [1953] P. 246.
59. [1993] 2 I.R. 476, 500–501.
60. [1953] P. 246, 256.
61. The difference is related to the abolition in Ireland of the married woman's domicile of dependence—both at common law and by statute—and the consequential modification of the domicile principle to allow for recognition on the basis of either spouse's domicile, rather than the spouses’ common domicile: Domicile and Recognition of Foreign Divorces Act 1986, s.5; W v. W [1993] 21.R. 476. Travers v. Holley [1953] P. 246 was decided some 20 years before the abolition in England of the married woman's domicile of dependence: Domicile and Matrimonial Proceedings Act 1973, s.1.
62. It should also be noted that some potential problems have disappeared. For example, the question whether a divorce granted in Northern Ireland could be entitled to recognition in Ireland (see O'Reilly, J., “Recognition of Foreign Divorce Decrees” (1971) 6 Ir. Jur. (NS) 293, 301)Google Scholar , to which the Irish courts were never required to provide an answer, was answered affirmatively by Domicile and Recognition of Foreign Divorces Act 1986, s.5. Whether divorces obtained in Northern Ireland ever presented a potential problem in Ireland is, however, doubtful: Binchy, W., Irish Conflicts of Law (1988) p.278.Google Scholar
63. See, however, LB v. HB [1980] I.L.R.M. 257 (in which a divorce obtained in France was denied recognition, notwithstanding the fact that H and W were domiciled in France, because of fraud); G v. G [1984] I.R. 368 (in which the question facing the court was the enforcement of an order for maintenance payments related to a divorce obtained in Massachusetts); In re Fleming, decd [1987] I.L.R.M. 638 (in which a nullity decree obtained in Nevada was denied recognition because H had not been domiciled in Nevada).
64. For divorces granted on or after 1 March 2001, the Brussels II Regulation is applicable: Council Regulation (E.C.) No. 1347/2000, [2000] O.J. L160/19.
65. Domicile and Matrimonial Proceedings Act 1973, s.5.
66. “It soon became obvious that [the criterion employed in Indyka] was not specific enough to provide a basis for recognition without the necessity for constant recourse to the courts”: Collins, L. et al. (eds), Dicey & Morris on the Conflict of Laws (13th ed, 2000) para. 18–064.Google Scholar
67. See, in particular, Shatter, A., Family Law (4th ed, 1997) p.421.Google Scholar
68. [1998] O.J. C221.
69. Art.14.
70. Art.15(1).
71. Council Regulation (E.C.) No. 1347/2000: [2000] O.J. L160/19.
72. [1958] I.R. 336.
73. See Art.73 of the Constitution of the Irish Free State (1922).
74. [1917] 1 K.B. 634.
75. [1958] I.R. 336, 349. See Binchy, W., Irish Conflicts of Law (1988) p.274.Google Scholar
76. [1964] P. 315.
77. See Ormrod LJ in Quazi v. Quazi [1979] 3 All E.R. 424, 433. The common law has been superseded by the Family Law Act 1986, s.44(1), which provides that “no divorce or annulment obtained in any part of the British Islands shall be regarded as effective in any part of the United Kingdom unless granted by a court of civil jurisdiction.” See Berkovits v. Grinberg [1995] Fam. 142.
78. See Blayney J at [1993] 2 I.R. 476, 504.
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