| |
|
| |
| News: Recognition of Foreign Divorces |
| |
Pre-1937 Irish Courts generally recognized foreign Decrees of Divorce if at the date of the institution of the Divorce Proceedings, both Spouses were domiciled within the jurisdiction of the Court which granted the Decree of Divorce.
Following the enactment of the 1937 Constitution, there was a huge amount of uncertainty as to whether there was judicial recognition in relation to foreign Decree of Divorce. | | | | The Law remained unchanged until “the coming into force on the 2nd October 1986 of The Domicile and Recognition of Foreign Divorces Act 1986”. This Act made provision for a wife to acquire an independent domicile of her own and provide a further recognition of a foreign Decree of Divorce if the Spouse was domiciled within the jurisdiction of the foreign Court which granted it at the date of the institution of the Divorce Proceedings. |
| |
|
| |
| Domicile |
| |
| Domicile refers to a person’s place of birth or in the case of the person emigrating, it refers to a place where he/she intends to reside indefinitely. |
| |
| |
| The Effect of Recognition of a Foreign Divorce |
| |
Once a foreign Decree of Divorce is recognized under Irish Law the parties whose Divorce is recognized cease to be “Spouses”. They are in effect free to re-marry.
Part 3 of the Family Law Act 1995 allows both the Circuit and High Court to make Financial and Property Orders in favour of persons who obtained a foreign Decree of Divorce which is recognized as valid within this jurisdiction.
The Court however will not make any Orders unless it is satisfied that it is appropriate to do so.
A central factor in determining whether or not to make a relief is the financial resources and needs of the party. The Court has to take into consideration a variety of factors such as:
a) the connection which the parties concerned have with the State.
b) the availability in the State of any property in respect of which a relief Order in favour of the Applicant or a child could be made. Obviously if there are no assets within the State, it is unlikely that the Irish Court would be in a position to make any Order.
|
| |
The recognition of Divorces, Separations and Annulment of Marriage granted in other EU States has now been further altered by the coming into effect of “Brussels II Bis” on the 27th November 2003.
The rules in relation to Jurisdiction and Divorce are now found in Article 3 of Brussels II Bis.
A Court in a Member State has jurisdiction to entertain an action for Divorce, Separation or Nullity where: |
| |
• Both Spouses are habitually resident there.
• Both Spouses were last habitually resident and one still resides there.
• The Defender is habitually resident there.
• The Pursuer is habitually resident and either has resided there for at least a year preceding the Application or is domiciled (or a national) there and has resided there for at least six months preceding the Application.
• Both Spouses are domiciled (or nationals). |
| |
Habitual Residence is a key concept in Brussels II Bis. It is not defined. Habitual residence is said to mean residence which has been enjoyed for some time and with the settled intention that it should continue. A State either has jurisdiction to deal with the Application or it does not.
Where Proceedings relating to a Divorce, a Legal Separation or Marriage Annulment are brought before Courts of different member States, the Court second seised shall of its own motion stay its Proceedings until such time as the jurisdiction of the Court first seised is established. |
| |
Brussels II Bis applies the principle of “first come first served” to actions raised in two different Member States. The effect of this legislation has not been helpful. It means that in many cases, there is a rush to commence Proceedings and it has opened the doors to “Forum Shopping”. In essence a Spouse sets up residence in a particular country with a more favourable Divorce regime than this jurisdiction can issue Proceedings and have the matter dealt with there.
Time is of the essence and immediate advice from a Family Law Solicitor should be immediately obtained. |
| |
| |
| |
 For further information, please contact Marion Campbell Solicitors by calling (01) 475 9345, or by filling out an on-line enquiry form. |
