Helen McEntee (Meath East, Fine Gael)
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The Domicile and Recognition of Foreign Divorces Act 1986 governs the recognition of foreign divorces granted on or after the coming into operation of the Act on 2 October 1986. Section 5 of the 1986 Act provides that a foreign divorce may only be recognised in Ireland if it was granted in the country where either spouse was domiciled on the date the divorce proceedings were instituted. The determination of “domicile” includes an assessment of the intention of the person to remain indefinitely in the foreign jurisdiction.

Recognition of foreign divorces granted prior to the coming into operation of the Domicile and Recognition of Foreign Divorces Act 1986 is governed by common law domicile rules which are now consistent with those in the 1986 Act.

The recognition in Ireland of a divorce, legal separation or marriage annulment granted in another EU Member State is currently governed by Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) also known as Brussels II ter. This Regulation is in effect in Ireland since 1st August 2022 and is given full effect in this State by Statutory instrument - SI number 400 of 2022 -European Union (Decisions in Matrimonial Matters and in Matters of Parental Responsibility and International Child Abduction) Regulations 2022.

This EU Regulation provides for EU judicial co-operation and recognition and enforcement of judgments in cross-border matrimonial matters. Under the Regulation, divorces, legal separations or marriage annulments granted in all EU States, with the exception of Denmark, are entitled to recognition if granted in accordance with jurisdictional criteria specified in the Regulation. While habitual residence is the key governing criterion for recognition, the courts of a Member State also have jurisdiction under the Regulation where both spouses are nationals of that Member State.

Part 19 of the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020 makes provision for the recognition in Ireland of divorces granted in the United Kingdom or Gibraltar and has been in operation since 11.00 p.m. on 31 December 2020.

Where there is an issue as to whether a foreign divorce is entitled to recognition, section 29 of the Family Law Act 1995 allows a person to apply to court for a declaration as to marital status, including a declaration as to whether a foreign divorce is entitled to recognition in the State.

The Thirty-Eighth Amendment of the Constitution (Dissolution of Marriage) Act 2019 was signed into law on 11 June 2019 following its approval by the people in a referendum on 24 May 2019. This provides that:

“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.”