Bernard Durkan (Kildare North, Fine Gael)
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103. To ask the Tánaiste and Minister for Justice and Equality his plans to change the legislation in recognition of foreign divorce here having particular regard to the difficulties created in subsequent marriages in circumstances in which the remaining partner cannot qualify for widow and or widower’s pension; and if he will make a statement on the matter. [46410/18]

Charles Flanagan (Laois, Fine Gael)
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The question of whether a foreign divorce can be recognised in Ireland will depend on where and when the divorce was granted.

The recognition of foreign divorces that were obtained before the Domicile and Recognition of Foreign Divorces Act 1986 came into operation on 2 October 1986 is governed by common law rules on domicile. The judgment in the 2015 Supreme Court case of H v. H [2015] IESC 7 has confirmed that Irish law does not recognise the validity of a divorce lawfully granted prior to 2 October 1986 in a country where neither party to the marriage was domiciled at the date of institution of the divorce proceedings but where one party was resident on that date.

The Domicile and Recognition of Foreign Divorces Act 1986 sets out the circumstances in which a divorce granted in a jurisdiction outside of Ireland on or after 2 October 1986 will be recognised. Under section 5 of the 1986 Act, a divorce shall be recognised in Ireland if it was granted in the country where either spouse was domiciled at the date of the institution of the divorce proceedings.

The recognition in Ireland of a divorce granted in another EU Member State on or after 1 March 2001 is governed by EU Council Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (also known as the Brussels II bis or the Brussels IIa Regulation). This Regulation provides for EU judicial co-operation and recognition and enforcement of judgments in cross-border matrimonial matters.

Under the Regulation, divorces 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. Habitual residence is the key governing criterion for recognition. The Domicile and Recognition of Foreign Divorces Act 1986 no longer applies to the recognition of divorces covered by the Regulation.

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.

While I have no plans at present for amendment of the legislation on recognition of foreign divorces, the matter is being kept under review. In this regard, it should be noted that in June 2016, the European Commission published its proposal for a recast of the Brussels IIa Regulation. Ireland has opted in to the proposed Regulation and discussions on the proposed Regulation are ongoing.

Matters relating to eligibility for widow’s or widower’s pensions are governed by the Social Welfare Acts, which fall under the remit of the Minister for Employment Affairs and Social Protection.