Thursday, 5 March 2020
Department of Justice and Equality
328. To ask the Tánaiste and Minister for Justice and Equality the legislation introduced in recent years to give recognition to foreign divorces; if the provisions relating to UK divorces have been commenced; and if he will make a statement on the matter. [2714/20]
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 1986 Act on 2 October 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 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, 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. 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.
Part 3 of the Family Law Act 2019 provided for the recognition of divorces, legal separations and marriage annulments granted under the law of the United Kingdom, in the event of the withdrawal of the United Kingdom from membership of the European Union occurring without an agreement between the United Kingdom and the European Union under Article 50 of the Treaty on European Union setting out the arrangements for such withdrawal. As the Deputy will be aware, the UK withdrew from the EU on 31 January 2020 with such an agreement in place. Part 3 of the Family Law Act 2019 will therefore not be commenced. Issues relating to the recognition in Ireland of divorces granted in the UK after the end of the transition period are currently under consideration in my Department.
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.