Filter

Question

832. Deputy Denise Mitchell asked the Minister for Justice if consideration has been given to recognising divorce which has occurred outside of the State prior to 1986; and if she will make a statement on the matter. [22183/21]

Answer

Minister for Justice (Deputy Heather Humphreys): 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 judgement 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. 
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. 
That Act deleted the following subsection from Article 41.3 of the Constitution:
“3° No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.”,
and substituted that subsection with 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.”
The amendment will allow a change in the law to introduce greater consistency in the recognition of foreign divorces. The current law on recognition of foreign divorces has remained as it was before the Thirty-eighth Amendment of the Constitution because the Law Reform Commission, as part of its Fifth Programme of Law Reform, is examining the recognition of foreign divorces.
When the expert report of the Law Reform Commission is completed, it will provide valuable guidance for the development of proposals for legislation on the recognition of foreign divorces.