Charles Flanagan (Laois, Fine Gael) | Oireachtas source

Tairgim leasú a 4:

I leathanach 7, línte 3 go 5 a scriosadh agus an méid seo a leanas a chur ina n-ionad:"3° Féadfar socrú a dhéanamh le dlí chun aitheantas a thabhairt faoi dhlí an Stáit do scaoileadh ar phósadh arna thabhairt faoi dhlí sibhialta stáit eile."; agus

I leathanach 7, línte 7 go 9 a scriosadh agus an méid seo a leanas a chur ina n-ionad:"3° Provision may be made by law for the recognition under the law of the State of a dissolution of marriage granted under the civil law of another state.".

I move amendment No. 4:

In page 6, to delete lines 3 to 5 and substitute the following:"3° Féadfar socrú a dhéanamh le dlí chun aitheantas a thabhairt faoi dhlí an Stáit do scaoileadh ar phósadh arna thabhairt faoi dhlí sibhialta stáit eile."; and

In page 6, to delete lines 7 to 9 and substitute the following:"3° Provision may be made by law for the recognition under the law of the State of a dissolution of marriage granted under the civil law of another state.".

This amendment deals with the Government's proposal to modernise the provision in Article 41.3.3° of the Constitution on the matter of the recognition of foreign divorces. I am proposing the replacement of Article 41.3.3° with a readily understandable provision which clearly provides that the Oireachtas may legislate for the recognition of foreign divorces granted under the civil law of another state. The proposed new text will do no more than set out in express terms what the courts have found to be the present state of the law. However, in order to ascertain the present state of the law it is necessary to examine the case law on the interpretation of Article 41.3.3°. I am of the view that the constitutional position regarding the recognition of foreign divorces should be clear from a reading of our Constitution, particularly Article 41 thereof.

At present, different rules apply to the recognition of foreign divorces, depending on whether they are granted within or outside the EU. The Domicile and Recognition of Foreign Divorces Act 1986 governs the recognition of a divorce granted in a country outside the EU. The 1986 Act provides that a foreign divorce granted after the Act came into operation may only be recognised in Ireland if it was granted in a country where either spouse was domiciled on the date on which the divorce proceedings were instituted. The recognition of foreign divorces granted prior to the commencement of the 1986 Act is governed by common law domicile rules. Those rules are now consistent with the provisions of the 1986 Act, which is our law. The determination of domicile includes an assessment of the person's intention to remain indefinitely in the foreign jurisdiction. It has proven complex to determine this in some instances. By contrast, a test of habitual residence, which may be considered less complex and more clear, generally applies across the EU. EU Council Regulation 2201/2003, which is known as the Brussels IIA regulation, governs the recognition of divorces obtained in another EU member state. Habitual residence is the key governing criterion for recognition of a foreign divorce. The Law Reform Commission, LRC, has proposed to examine the legal issues relating to the recognition of foreign divorces after the referendum as part of its new fifth programme of law reform.

These are complex issues. That is why I am very keen for the LRC to have an opportunity to engage in a detailed study. I understand that will be done this year. I intend to legislate to introduce greater consistency in the recognition of foreign divorces. I ask Members to agree with me that it is best for us to be guided by the expert report of the LRC as we develop proposals for legislation in this area. However, it is also important for us to take this opportunity to signal that there will be a change in any event. The language of Article 41.3.3°, which deals with the recognition of foreign divorces, is consistent with a time in our history when divorce was expressly prohibited under our Constitution. We did not deal with this on the previous occasion. To my mind, the referendum in May is both opportune and appropriate to modernise this provision, although we will not have certainty until we have the LRC report.

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