Divorce in the European Union: Should Ireland Recognize Foreign Divorces?

• Author: Katie McQuaid
• Position: J.D. anticipated May 2007, The University of Iowa College of Law.
• Pages: 374-401

Page 374

The author would like to thank her family for their encouragement and support.

I Introduction to the Recognition of Divorce in Ireland

The recent European Union Green Paper on Applicable Law and Jurisdiction in Divorce Matters (hereinafter the "Green Paper") asked signatories to review their laws regarding the recognition of foreign divorces.¹ The Green Paper reignited debate in Ireland regarding the necessity and desirability of the strict requirements for getting a divorce in Ireland. Ireland is a Member State of the European Union² and a signatory to the Brussels II Regulation. However, due to its history and culture, Ireland should not be forced by the European Union to recognize foreign divorces that do not conform to its constitution and subsequent legislation. To recognize these divorces would require the government to change the existing restrictive law, a move which would surely be opposed by the Irish public, the majority of whom strongly disfavor liberal divorce policies. This Note 1) examines the basis for opposition to the recognition of foreign divorces in Ireland, 2) traces the development of Irish divorce law, 3) assesses the impact of Brussels II on Irish law, and 4) recommends that the Irish government should not adopt less Page 375 restrictive divorce laws which are contrary to the sentiments of the Irish public in response to the Green Paper.

II The Development of Irish Divorce Law

A The Constitutional Framework

The institutions of marriage and family hold a special place in Irish society. The drafters of the 1937 Constitution for the Republic of Ireland included explicit provisions to reflect the importance of those institutions. Article 41 of the Constitution provides: "[t]he State recognizes the Family as the natural primary and fundamental unit group of Society."³ The State, therefore, "guarantees to protect the Family."⁴ To further the goal of protecting the family, "[t]he State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it from attack."⁵

Due to these provisions in the Constitution, Irish couples had no legal mechanism to obtain a state-recognized civil divorce, foreign divorces included.⁶ This did not mean, however, that couples in unbearable marriages were entirely without options. Couples could obtain an Order of Separation, but with the proviso that the parties could not enter into valid subsequent marriages.⁷ This would, of course, put the couple's marriage in limbo. The Order of Separation showed that, legally, the marital relationship was over. This was the closest couples could get to a divorce, yet the marital bond had not been fully severed because the State still viewed the couple as married, and therefore, the separated individuals could not move on and marry other people.⁸ The Order of Separation nevertheless turned out to be a popular route for Page 376 unhappy couples. The 1996 census revealed that of the almost 95,000 people whose marriages had broken down, 78,005 had obtained the Order and separated.⁹

Unhappy couples could also apply for an annulment from the Catholic Church. An annulment would allow a couple to remarry within the Church. However, the original couple remained married in the eyes of the State even though a subsequent marriage had taken place.¹⁰

As with an annulment in the Catholic Church,¹¹ the couple could apply for a grant of nullity from the State via the courts. This decree allowed the couple to "remarry" because the first marriage was deemed never to have occurred.¹² This is so because the marriage was either void or voidable.¹³ However, the requirements to establish that the marriage was indeed void or voidable were so difficult to meet that few people actually used this option.¹⁴

Yet another option was for couples to go to a foreign country to get a divorce, but this option, like the others, did not result in the State recognizing that the marriage had ended.¹⁵ This alternative had the benefit of allowing the parties to remarry in the state that granted the divorce, as well as in other states that recognized that divorce.¹⁶ While the State would not recognize a foreign divorce, some communities within Ireland would.¹⁷ Page 377

B The Law Changes to Allow for Limited Recognition of Divorce

Ireland's absolute prohibition on the recognition of divorce ended in 1986 when the Irish Parliament, known as the Houses of the Oireachtas, passed the Domicile and Recognition of Foreign Divorces Act¹⁸ (the "1986 Act"). Under the 1986 Act, one spouse had to be domiciled in the granting state for Irish courts to recognize a divorce decree by a court in a foreign jurisdiction.¹⁹ This change in the law made it possible for a married woman to establish a domicile separate from her husband.²⁰Before the passage of the 1986 Act, cases such as Gaffney v. Gaffney²¹required both parties to be domiciled in the foreign jurisdiction. Since a married woman's domicile was based on that of her husband, the only relevant domicile for the Irish courts to consider in recognizing the foreign divorce was that of the husband.²² Subsequent case law has eroded the rule of dependent domicile set forth in Gaffney as contrary to the Irish Constitution.²³ Thus, divorces granted before the enactment of the 1986 law were considered valid if either party had been domiciled in the foreign jurisdiction at the time of the divorce application.²⁴ The 1986 Act, therefore, returned the law to the common law rule established Page 378 before the 1937 Constitution.²⁵ Couples made use of this new legislation; by 1991, 8.9 percent of all separated women and 14.5 percent of all separated men were divorced abroad.²⁶ Also in 1986, the Houses of Oireachtas called for a public referendum to amend the Constitution to allow domestic divorce.²⁷ The public soundly rejected the proposal, with 63 percent of the voting population opposed.²⁸ Ten years passed before the issue of domestic divorce arose again. In 1996, a similar referendum passed with a bare majority of 50.3 percent in favor of the amendment.²⁹Although the referendum passed, the debate about domestic divorces continued. An opposition group challenged the outcome of the referendum, but the Supreme Court of Ireland upheld the decision of those who voted in favor of the amendment.³⁰ With that final impediment removed, the Dail³¹ passed the Family Law (Divorce) Act of 1996.³²

The Family Law (Divorce) Act of 1996 (the "1996 Act") requires that three elements be satisfied in order for a spouse to successfully obtain a Page 379 divorce: 1) the couple must have lived apart³³ "for a period of or periods amounting to, at least four years during the previous five years;" 2) that "there is no reasonable prospect of reconciliation between the spouses;" and 3) that "proper provisions" are made for the support of the spouses and children of the marriage.³⁴

While the four-year mandatory separation period is strict compared to similar enactments by other European Union Member States, critics of the legislation called it the "'most liberal' type of divorce regime"³⁵ since divorces will be granted on a no-fault basis. Prior legislation, such as the 1989 Judicial Separation Act, allowed for separation based on the length of time the parties had lived apart, but also provided for fault grounds including "desertion, adultery or unreasonable behaviour."³⁶ On the whole, however, the requirements of the 1996 Act show a commitment to discouraging divorce and reflect the Irish public's wish to maintain strict requirements for divorce.

In addition to these three basic requirements, the 1996 Act requires that efforts be made "to ensure [the parties'] awareness of alternatives to divorce proceedings and to assist attempts at reconciliation."³⁷ Family law solicitors (attorneys) must discuss the possibility of reconciliation, mediation, or even separation rather than divorce with each client, and must provide the client with contact information for people who could assist the couple in avoiding divorce.³⁸ Additionally, the solicitor must submit to the court a signed certificate stating that he has complied with the 1996 Act and advised the clients of other options.³⁹ This portion of the 1996 Act is illustrative of the disfavor with which much of the Irish public views divorce.

Divorce is also unfavorable under Irish case law, as courts would rather "continue the old common-law tradition of life-long spousal Page 380 support obligation" than encourage a clean break between the parties.⁴⁰For example, in the 1999 case of J.C.N. v. R.T.N., a wife applied for a divorce from her husband whom she...