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Supreme Court of Ireland Decisions
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Notes on Memo: Answer question 1: No.
Not necessary to Answer Q. 2 and 3.
Dissenting judgment by Judge O'Donnell.
THE SUPREME COURT
Appeal No: 8/2010
IN THE MATTER OF SECTION 38 OF THE COURTS OF JUSTICE ACT 1936
IN THE MATTER OF A CASE STATED TO THE SUPREME COURT
The Attorney General
Judgment delivered on the 3rd of February, 2015, by O’Donnell J.
2. There are perhaps three points upon which I would respectfully differ in my analysis of the law from the approach taken in the majority judgment. First: I do not agree that s. 5 of the Domicile and Recognition of Foreign Divorces Act 1986 (“the 1986 Act”) fixes public policy for the purposes of recognising (or refusing to recognise) a foreign divorce obtained prior to 1986; second, it follows that I consider that to adopt a rule of recognition of foreign divorces granted on the basis of habitual residence, would not conflict with present public policy; and, third: I do not agree that an inconsistency between the jurisdictional grounds for the grant of divorce, and the jurisdictional basis for recognising foreign divorces, is not a reason for modifying the common law rule. Instead, I consider it is one powerful reason to consider adjusting our rule of recognition, and indeed was so recognised by this Court in J.W. v. J.W.  2 I.R. 476. I consider that the law as articulated by this Court in that case is that recognition of foreign divorces, at least those granted prior to 1986, is a matter of common law, which is not immutable and is to be determined by the courts in the light of present public policy. In applying that test, I would, for reasons I will elaborate on shortly, give less weight to the provisions of s. 5 of the 1986 Act, and greater weight to the provisions of Family Law (Divorce) Act 1996 (“the 1996 Act”) which set out the grounds upon which Irish courts are now empowered to grant divorces based on residence as well as domicile and to Council Regulation (EC) No. 2201/2003 of 27 November 2003(“Brussels II bis )repealing and extending Regulation (EC) No 1347/2000 so that Ireland now recognises divorces on the basis of habitual residence (as well as domicile and other jurisdictional grounds).
3. Since at least the conflicting High Court decisions in G.McG. v. D.W.  1 IR 96 (recognition on basis of residence as well as domicile) and M.E.C. v. J.A.C.  2 IR 399 (recognition only on basis of domicile) there has been confusion as to the grounds of recognition of pre 1986 foreign divorces in Irish law, which this case must resolve. In arguing for a rule of recognition based on the domicile of either party to the marriage, the respondent and notice party both seek to apply the test set out in the 1986 Act for post 1986 divorces (as indeed was the consequence of the decision of the majority of the Supreme Court in J.W. v. J.W.) to pre 1986 divorces. This however has the consequence of extending the range of the domicile recognition rule. At the level of principle, I see no benefit in that. It is clear to me that the policy of recognising only domicile based divorces has no intrinsic logic or merit and is inconsistent both with the basis upon which Irish courts now themselves grant decrees of divorce and since 2001, have recognised divorces obtained in other member states of the European Union (which must be the majority of divorces which the Irish courts are asked to recognise and enforce). Continued adherence to a domicile based recognition system for post 1986 divorces in non Brussels II bis countries can only increase the number of limping marriages. The merit in the rule of recognition on the basis of domicile is certainty and predictability that a clear rule provides and the possibility (impossible to assess and perhaps improbable in the light of the considerable uncertainty attending this area) that individuals may have arranged their affairs and acted on the basis that such a rule of recognition would be applied. I accept that these are considerations of some weight but they do not point decisively to one outcome: the fact is that the present Irish law on recognition of foreign divorces is anything but certain, and will not be uniform whatever the outcome of this case.
4. The 20th century has seen very considerable social change, not least in Ireland in relation to the status and importance of marriage, and the availability and acceptability of divorce. The same period has seen greatly increased international mobility. Every time there is a gap between the law in one country and another, and in particular the jurisdictional basis for the grant of divorce in one country and the rule of recognition in another, there is a risk, indeed almost an inevitability, of what the case law describes, correctly, as the scandal of limping marriages, the fact that the marital status of persons would be different depending on location. A marriage considered dissolved in one jurisdiction may be considered subsisting in another. When, as often happens, divorce is followed by subsequent remarriage (and possible subsequent divorce) considerable complications ensue. In theory if one jurisdiction (in this case Ireland) does not recognise the original divorce, then logic compels it to consider any subsequent remarriage as bigamous (which is both a crime and for good measure an extra territorial offence) and adulterous. These are heavy burdens to impose upon real people already struggling with the human cost of marital breakdown. Some element of this is unavoidable, unless all countries recognise divorces granted by every other country, and that is not possible or necessarily desirable. But any sensible and humane legal system seeks to minimise the area for difference and thus the number of limping marriages. Most countries readily recognise divorces granted on a jurisdictional basis which the recognising country itself claims, and also allows a certain margin of appreciation, for local differences. If the jurisdictional basis is not fundamentally at odds with the values of the recognising country, the desirability of avoiding limping marriage, and a commendable unwillingness to insist that other countries adopt rules identical to those of the recognising country, will encourage recognition. Here however, the position is that the rule of recognition argued for by the respondent and notice party puts Ireland at odds with the jurisdictional basis favoured by most developed countries for the grant of divorce (and moreover a jurisdictional basis which Ireland itself applies) and thus creates continuing opportunity for limping marriages. While lawyers may find it possible to conceive of marriage as valid in one jurisdiction but not existing in another, and can conceive of ways sometimes costly and time consuming, in which that decision can be ameliorated or possibly regularised, this exacts a high price in human terms. I do not think it is easy in real terms to live schizophrenic existence on a matter as fundamental to one’s own sense of oneself as marital and family status. The problems created are real and difficult but are individual, isolated and private. For whatever reason there has been little legislative change despite calls for such change from many quarters. Instead, cases tend to arise on a case by case basis in litigation, and the courts both in this jurisdiction and elsewhere have shown ingenuity and some subtlety in attempting to ensure a measure of flexibility and adaptability in the applicable law and in limiting unnecessary legal complexity and human distress.
5. Where the reason for the difference in the applicable law of different jurisdictions whether as to the grounds on which divorce is available, or the availability of divorce at all, is attributable to important social policy advertently chosen by one or other country, then any disconnect between the granting of divorces in one jurisdiction and their recognition in another, is merely a consequence of a public policy adopted by that jurisdiction, to which the courts must give effect. In my view it is impossible to understand the development of the Irish case law on foreign divorces or indeed the structure of statutory provisions without having regard to the fact that the grant of divorce in Ireland was unknown since the foundation of the State. Indeed between 1937 and 1996 the Constitution contained an explicit absolute ban on divorce. That was an expression of public policy in its strongest form and its impact is clear in the decisions on recognition during that period. This leads to another important consideration. The law frames the question as the terms on which Irish courts will recognise orders of foreign courts. This might at first sight suggest Irish courts concerning themselves with decisions made in respect of foreign nationals. In fact the early cases in my view illustrate an understandable concern with applying a rule of recognition that will not facilitate Irish citizens in circumventing the public policy against divorce expressed in the Constitution itself. Since however it is manifest that the law and public attitudes in Ireland have undergone significant changes, it is important when considering the decided cases, and where relevant the enacted statutes, particularly for the purposes of determining the present public policy of the courts, to put such matters in their distinctive historical context.
6. The facts in this case stated are sparse. We know little about the circumstances of the divorce obtained in England or the applicant’s motivation in seeking it or the respondent’s response to it. However, it is undeniable that the applicant sought and obtained a divorce in the UK and lived there for 22 years as a divorced woman. While the High Court Judge has found the applicant was not domiciled in the UK at the time of the divorce, it is clear that she was bona fide resident there as indeed her subsequent residence shows. At some stages during that 22 year period time she might have been considered to be domiciled there. Certainly the divorce was granted by a jurisdiction with which she had a close real and enduring connection. It is not suggested that the divorce was, and is, anything but perfectly valid in the UK. However, on any view the applicant’s case is that she seeks a declaration that between 1982 and 2005 she and the respondent were divorced in England and the UK more generally (and in every country which recognises that divorce) but married in Ireland. In the underlying Circuit Court proceedings she must solemnly assert that while divorced in England she was also separated for more than 5 years from her husband (in Irish law) and, unsurprisingly, that there is no prospect of reconciliation. The end point of this is to seek a decree of divorce as of the date not of the English divorce, but rather of any Circuit Court decree. If this regularising of the position of the parties was the only object of the proceedings then it would probably be more convenient to simply recognise the English divorce, but the proceedings also seek ancillary relief in the nature of periodical payments, lump sum payments, a right to reside in the family home to the exclusion of the respondent, and an order transferring to her the respondent’s entire estate and interest in the family home and contents, among other reliefs. This leads me to two observations. First, this issue is as much, if not more about financial matters as about status. Second, any resolution of the financial issues between these parties and others in a similar position requires a considerable degree of flexibility to reflect the reality of their lives. This is not easily achieved (and may not be capable of being achieved) if it is to be approached on the factual fiction (whatever the legal analysis) that this is a couple married for the last 40 years and the applicant is a spouse for whom “proper provision” must be made out of the present assets available to the respondent, before an order of divorce is made.
The Development of Irish Law on Recognition of Foreign Divorces
8. It may however be worth considering in some greater detail the reasoning in two important English cases, Travers v. Holley  P. 246 and Indyka v. Indyka  A.C. 33 (“Indyka”), because not only are they important cases in the field of conflicts of law, and deal explicitly with the questions which arise in this case as to the recognition of foreign divorces as a matter of common law, but they were expressly relied on in the judgment of Blayney J. in the decision of J.W. v. J.W., which is the most important Supreme Court decision in this area.
9. Travers v. Holley concerned a husband and wife who married in the UK in 1937 and emigrated to New South Wales in Australia. There the husband left his wife, obtained a commission in the Australian forces and subsequently transferred to the British forces. The wife obtained a divorce in Australian in August 1943 on grounds of desertion. Both the husband and wife later remarried. The husband’s second marriage was unsatisfactory, and in seeking to resolve that matter, he was, it appears, advised that the English courts would not recognise the Australian divorce, because at that time the husband had reverted to his English domicile. It followed on this logic that the wife, by remarrying, had committed adultery, and on that ground the husband sought a divorce in England. The English Court of Appeal held that even assuming that the parties were no longer domiciled in Australia at the time of the divorce (which was probable since the husband had returned to the UK and the doctrine of the domicile of dependency then applied to the wife) an English court would nevertheless recognise the divorce in Australia because the UK courts granted divorces on the same basis as the courts in New South Wales, i.e. to deserted wives resident though not domiciled within the jurisdiction. This was an important departure from the existing common law rule that only domicile based divorces could be recognised. Furthermore, while the respective statutory provisions in the United Kingdom and Australia were very narrow and designed to ameliorate the position of deserted wives then suffering from the doctrine of the domicile of dependency, the principle stated was stated in broader and more general terms. Thus Somervell L.J. said (at page 251):
11. Indyka v. Indyka is an important a decision of the House of Lords on this issue, reached after extensive argument. It was important at the time because of the flexibility shown by the entire House (Lord Reid, Lord Morris of Borth-Y-Gest, Lord Pearce, Lord Wilberforce and Lord Pearson), which was prepared to extend recognition to a divorce granted by the courts of a jurisdiction to which the party had a “real and substantial connection”. That test proved relatively short lived in the UK because that jurisdiction, by statute, adopted a test of habitual residence shortly thereafter. But the decision of the House of Lords is a clear demonstration of the flexibility of the common law and its capacity to adapt to significant changes in society and law. For present purposes the decision is perhaps more important because a majority of the Court (Lord Morris of Borth-Y-Gest, Lord Pearce and Lord Pearson) agreed with the majority in the Court of Appeal (Lord Denning M.R. and Diplock L.J. as they then were) that the principle in Travers v. Holley could apply in a retrospective sense. Thus, the question was not whether at the time the divorce was granted in the foreign jurisdiction the Court would itself have granted a divorce on the same basis, but rather whether at the time that recognition is sought, the Court would grant divorce on that ground or on that basis.
12. It was necessary to decide this point because the case involved a decree of divorce in Czechoslovakia in February 1949 granted on the basis of residence, which at that time was not a basis for divorce in the United Kingdom and did not become a basis for divorce until December of that year. The majority of the Court of Appeal however was prepared to hold that the English courts should recognise in foreign countries a like jurisdiction to that which they themselves claimed as of the date of recognition. The divorce in Czechoslovakia was valid and to be recognised in the UK whether it was granted before or after the English law changed in December 1949. A majority of the judges in the House of Lords agreed. All the members of the House of Lords considered that this was a matter to be determined by the common law and that the flexibility of the common law was particularly desirable in this area. Thus (at page 65), Lord Reid said:
14. Lord Pearce in Indyka also observed that there was a close link between jurisdiction and recognition. At page 78 he said:
15. The principles in Travers v. Holley and in Indyka were expressly approved and indeed relied upon in J.W. v. J.W. If accordingly this case was approached on the basis of the reasoning in those decisions, that reasoning should lead, at least in principle, to a recognition of the divorce in this case. It is a divorce based on bona fide residence. Such divorces are now granted by the Irish courts and have been since 1996. The Irish courts should in principle recognise a divorce granted on the basis on which the court itself grants divorce. This illustrates in my view the fact that if the English divorce here is not to be recognised, it must be because of some other factor. In this case that factor is said to be the impact of the 1986 Act. Accordingly it is necessary to consider the provisions of that statute.
The Domicile and Recognition of Foreign Divorces Act 1986
The decision of the Supreme Court in W v W
18. The judgment of Blayney J. quoted extensively from the decisions in Travers v. Holley and Indyka. He also referred to the judgment of Kingsmill Moore J. in Mayo-Perrott. The essence of his judgment is encapsulated in a passage at page 504:
Two additional conclusions can be drawn from the passages cited from the judgments in Travers v Holley  P. 246 and Indyka v Indyka  1 A.C. 33: firstly, that the common law rule is judge-made law and is not immutable; and secondly that the question of when Court in the light of its present policy.”
20. But even if it is right to distinguish between the jurisdiction to grant divorce and the jurisdiction to recognise a foreign decree, there is a third significant change in public policy since the decision in J.W. v. J.W.. That is the coming into force in Irish law of reciprocal rules for recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses contained in the Brussels II Regulation and in Brussels II bis. This Regulation applies to all member states of the EU with the exception of Denmark. The Regulation addresses recognition and adopts a general principle of recognising divorces granted on a number of bases, including residence. Not only does this apply as a general rule, and to what must be the bulk of divorces which Irish courts are required to recognise, but it applies specifically to the jurisdiction within which the divorce in this case was granted. This allows for a very close analogy to be drawn with the decision in J.W. v. J.W. In that case, if the divorce in question had been granted in 1993 at the time of the decision in J.W. v. J.W. it would have received recognition in an Irish court by virtue of the provisions of s. 5 of the 1986 Act. The effect of the decision in J.W. v. J.W. therefore was to apply the law for recognition of contemporaneous divorces (which applied to them by statute) to earlier divorces, as a matter of common law, by applying the public policy embodied in the Act. By the same reasoning, if the divorce here had taken place in England in 2005, the Irish courts would unhesitatingly recognise it under Brussels II bis. Accordingly, while it may be said that extending recognition rules to pre 1986 residence based divorces is a larger step than the change effected in J.W. v. J.W., the reasoning is indistinguishable.
21. It appears therefore that the legal argument that public policy tends against recognition of the divorce in this case, relies on the terms of s. 5 of the 1986 Act as embodying a commitment to domicile as the sole ground for recognition. However, for the reasons set out above, I consider that that Act did not, even at the time, represent a strong adherence to the principle of domicile as a ground of general recognition of foreign divorces. Rather I think s.5 was seen as a relatively small qualification of a principle understood to apply as a matter of common law. In any event, it can no longer be said to represent present public policy in the light of the changes identified above. Accordingly, any fair consideration of the present policy of the court which both grants and recognises divorces on the basis of residence, should lead to a willingness to recognise this divorce. Such recognition is, as Blayney J. makes clear, in principle within the power of the courts, since it is a common law rule, is judge made and is not immutable, and such a conclusion would lead to the avoidance of limping marriages. Section 5 of the 1986 Act does not embody present public policy, but it may petrify it as of 1986 insomuch as it applies (exclusively) to foreign divorces between 1986 and 2000, and after that date to divorces in countries which are not member states of the European Union. But that might be a reason to limit rather than extend its operation.
22. If it was clear that this was a matter under active consideration by the legislature, then it would be preferable that public policy would be embodied in legislation passed by the Oireachtas. However, as already observed, traditionally rules on recognition of foreign decrees have been a matter of judge made law in which legislative interventions are rare and sporadic. The 1986 Act was focussed on the narrow question of the removal of the domicile of dependency rather than any intention to legislate more generally for this area. Since 2000, Irish law on recognition of existing divorces has contained the significant anomaly, that an Irish couple who go and reside in another European country, and marry and divorce according to the laws of that country, will have their divorce based on residence recognised, whereas a similar couple going to the United States, Australia or Denmark, and who divorce, will not. Furthermore, a couple in the United States, Australia or Denmark, who were born there (or in any of the very many countries which now recognise residence based divorces) could marry and divorce at the same time as the Irish couple, and relocate to Ireland and have their divorce recognised. While the Constitution maintained an absolute ban on divorce it was understandable, and arguably required that Ireland should adopt a rule of recognition which did not permit circumvention of that ban and the values it entailed, even at the price of some dislocation between the law in friendly countries and the recognition rules applied in Ireland. A similar argument could have been made though with considerably less force given the strict terms (by international standards) for the grant of divorce permitted by the Constitution. However no such argument can be sustained now when divorces granted in Brussels II countries are routinely recognised. It is one thing to seek to refuse recognition to Irish spouses who relocate abroad and obtain a divorce, but there is no logic in affording recognition to bona fide divorces granted in Newry but not New York, Coventry but not Copenhagen. There is no public policy that I can discern to justify this distinction now. I would not interpret the absence of legislative alteration of the 1986 Act as a passive public policy endorsement of this anomalous situation, or as expressing a continuing perverse endorsement of a rule of recognition based on domicile. Instead the absence of legislation is consistent with the view that the recognition of foreign decrees, and in particular divorces, is not core legislative business.
23. Accordingly, I would with respect, not agree that the judgment in G.McG. v. D.W. is wrong, at least as a matter of legal analysis. On the contrary, approached on its own terms it is a humane decision and in keeping with the general and broadly admirable approach illustrated in the judgment of Kingsmill Moore J. in Mayo-Perrott and the majority decisions in Travers v. Holley, Indyka and J.W. v. J.W.. Nevertheless I hesitate to endorse that decision and introduce one further twist into an already complicated area of law. The most cogent objection to the decision in G. McG. v. D.W. may not be based on principle or precedent, but rather on pragmatism. The 1986 Act operates as something of an obstacle to a comprehensive reform of the law. So long as it is understood to exclusively govern post 1986 divorces (and that is the impact of the High Court decision in D.T. v. F.L.  1 IR 434, albeit a decision which expressed approval of the principle in G. McG. v. D.W.), and to continue to govern recognition of divorces in countries other than countries in the European Union, then even if this Court was to endorse the decision in G. McG. v. D.W., it would lead to a still confusing patchwork of rules as to the recognition of foreign divorces. In the case, for example, of residence based divorces granted in the United Kingdom, the result would be that pre 1986 and post 2000 divorces would be recognised but not those granted between those dates (unless recognised by the law of the domicile of one of the parties). Nor do we know how many cases of pre 1986 divorces there are and their circumstances may vary widely.
24. It can be said, and was said in K.D. v. M.C.  I.R. 697, that whatever the merits of the rule, people may have altered their affairs on faith of an understanding of their position, which should not now be disturbed. I agree that this argument has weight. However it is worth pointing out that the effect of the acceptance of the analysis of Kingsmill Moore J. in Mayo-Perrott, was to afford recognition to foreign divorces previously considered not to be recognisable. Similarly the decision in J.W. v. J.W. had the effect of affording recognition to a class of foreign divorces (those based on the domicile of a wife) previously considered ineffective in Ireland. Furthermore there has been uncertainty about this specific issue since at least 2001, so no one could have had a completely settled expectation as to the applicable law. It is also necessary to distinguish between the different ways in which people may have acted on faith of their foreign divorce, or on the belief that such divorce was not capable of recognition. Since it is I think rare that people actually seek to have a limping marriage it will most often be the case that the steps taken in Ireland will be to seek an Irish divorce merely to confirm the status of the parties. Even in such a case recognition of the earlier foreign divorce might be more beneficial since it would avoid the cost and stress of further proceedings, and be in accordance with the way in which the parties have lived their lives. Indeed where the foreign divorce was followed by a foreign marriage, recognition of the validity of the divorce would be preferable since a later Irish divorce would not succeed in completely regularising the position since Irish law would (on this hypothesis) still consider the second marriage bigamous. This is not a fanciful proposition; it is what occurred in the G.McG. v. D.W. case. But it becomes more problematic if the actions on faith of an understanding that a foreign divorce will not be recognised go beyond the question of status and involve financial matters. Sometimes that is entirely appropriate, and it is noteworthy that the Family Law Act 1995 (“the 1995 Act”) permits financial adjustment be made in respect of foreign divorces post dating that Act. However this is a consideration that does not point all one way. It might be said that a person who advances a claim to the estate of their deceased former spouse notwithstanding a foreign divorce, or who now seeks new provision to be made notwithstanding a settlement or orders made inter partes in the foreign proceedings is, at some level, acting on faith of an understanding of the legal position, but it is less clear that it would be wrong to disappoint such an expectation. I do accept however that the possibility of parties having acted on faith of an existing understanding of the law is a valid argument against change, or at least a blanket rule. Given the wide range of fact situations which developed over the last quarter of the 20th century in particular, it seems to me that there is scope for adopting a more nuanced rule (whether by judicial decision or by statute) which does not necessitate a blanket acceptance or denial of validity and would allow some consideration of the individual merits of each case to be sufficiently clear to allow application without resort to court in each case. In that case the question may become, what should be the general rule to which there might be exceptions.
26. In Gaffney v. Gaffney the High Court and the Supreme Court unanimously held that the plaintiff wife was not precluded from asserting the invalidity of the English divorce which she had sought, albeit under duress. Once she wished to demonstrate that it was obtained by duress, it could not be said that any estoppel by record arose. This was the basis of the decision of Henchy J. with whom Griffin J. agreed. In his judgment Walsh J. (with whom O’Higgins C.J. agreed), went considerably further (as had Kenny J. in the High Court) and held that estoppel could never arise in the case of marriage since marriage was a matter of status, and a status to which somebody was not entitled to by law, could not be achieved by the principle of estoppel. The remaining judge, Parke J., merely agreed and so there is no version which commanded a majority. It is probably true however to say that the broader statements of Walsh J. have tended to be treated subsequently as stating a general principle and indeed the ratio decidendi in that case.
27. Notwithstanding the apparent understanding of that decision, the argument that there was some place for the principle of estoppel in this area, and more particularly where it was related not directly to questions of status but rather to financial matters such as a claim to participate in the estate of a deceased former spouse, notwithstanding a foreign divorce, continued to be made. See for example the influential article by Mr William Duncan, “Desertion and Maintenance” ((1974), 9 Ir. Jur., 2, 321 - 325) and comments to the same effect in Binchy, Irish Conflicts of Law (Dublin; Butterworths; 1988) page 288-289. These matters are fully discussed in the case of C.K. v. J.K. and for reasons which will appear later, I do not think it is necessary to outline the arguments in any greater detail. The argument in favour of some limited role for the principle of estoppel also relies on the fact that such principle was applied in a number of states in the United States and was articulated in the influential Restatement (Second) Conflict of Laws (1971) (paragraph 74) and also in the law of Canada, and in particular the judgment of Laskin J. in Downton v. Royal Trust Co. (1972) 34 D.L.R. (3d) 403. Furthermore, statements that such a principle may be available in Irish law were made obiter by Egan, O’ Hanlon and Fennelly JJ. in different cases. In C.K. v. J.K. the Court comprehensively reviewed these arguments and while expressing varying degrees of regret, the Court unanimously rejected the claim of estoppel made in that case. It is worth noting in passing that McGuinness J. referred to the law on recognition of foreign divorces and said:
28. The judgment of Fennelly J. (at paragraph 232) did seem to leave open the possibility of the principle of estoppel applying in matters not directly effecting marital status. At paragraph 232 of the judgment (page 294) he said:
30. However the Court here must make a principled decision between two different bases of recognition exemplified in two contrasting High Court cases: G.McG. v. D.W. (which recognised divorces based on habitual residence) and M.E.C. v. J.A.C.  2 IR 399 (which recognised divorces based only on domicile). It is worth adding that the G.McG. v. D.W. approach does not preclude or exclude the recognition of divorces based on domicile but would permit wider recognition of divorces based on habitual residence. I respectfully express my preference for the approach in G.McG. v. D.W. even in the legal context in which both cases were decided. Furthermore, it is clear that M.E.C. v. J.A.C. was decided in advance of the coming into force of the Brussels II Regulation. Indeed it appears that Kinlen J. understood that adoption of that ground of recognition of foreign divorces would require the approval of the people in a referendum. If indeed that were so, it would itself be a strong reason not to seek to anticipate the result, by way of a judicial declaration of public policy. That assumption was however, incorrect. Furthermore, the fact that Brussels II bis now represents the law in Ireland in respect of a very large number of countries is in my view a very strong reason pointing in favour of recognition. The entry into force of Brussels II and Brussels II bis significantly undermines the one attraction the rule proposed by Kinlen J. would have, which is that of providing a certain and consistent rule for all foreign divorces. That may have appeared possible at the time of the decision and on the assumptions made in it but it is not possible now. Even if this Court adopts a rule of recognising only domiciled based divorces pre 1986, divorces post 2000 granted by Brussels II countries will continue to be recognised on the basis of residence. Of course the same objection might be made in reverse: so long as it is accepted that the 1986 Act is understood as precluding the possibility of common law recognition of post 1986 divorces on the basis other than domicile, an issue which has not arisen in this case (and upon which I do not wish to be taken to express any concluded view), then there cannot be a single rule of recognition on the basis of residence. But if that is so, the Court must then choose which should be the rule and which the exception. It seems to me that there are good reasons now not to give greater scope to the domicile basis of jurisdiction than is absolutely necessary.
31. Before addressing those reasons in greater detail, I should however address the suggestion in M.E.C. v. J.A.C., that to adopt or endorse a rule of recognition on the grounds of habitual residence, would amount to judicial legislation. The 1986 statute is the only entry of the Oireachtas into the field of recognition of foreign divorces since the foundation of the State. In its own terms it explicitly only addresses divorces granted after that date. It follows therefore, that pre 1986 divorces are governed by common law. Such law was of course made by judges, and moreover Victorian English judges. I do not think those decisions could be properly described as judicial legislation, which I understand to be an improper interference into a field controlled by the legislator or the alteration, under guise of interpretation, of a law enacted by the Legislature. Indeed it seems to me that in truth this has largely been a field governed by the common law. The very fact that the 1986 Act does not seek to address the pre 1986 situation, or address grounds for recognition more generally could be seen to amount to a statutory endorsement of the principle that this area at the very least should continue to be governed by common law principles. Furthermore the terms of the Act are limited and guarded. For the previous (common law) rule a new rule is substituted. There is nothing to suggest an intention to render this area the sole preserve of legislation. For example nothing is said about grounds for non recognition, such as fraud, or public policy which is for example, provided for in ss. 2 and 3 of the Adoption Act 1991 and s. 57 of the Adoption Act 2010 dealing with the comparable area of recognition of foreign adoptions.
32. The common law as identified above, is not immutable and subject to change in the light of present public policy. I could not agree that to permit common law principles to continue to regulate an area which had always been so regulated, should be regarded as an impermissible interference in a field either consigned, or better left, to the legislative branch of government. I am conscious of the arguments that the development of the common law by judicial decision is necessarily limited. In Holmes’ phrase “they [judges] can do so only interstitially; they are confined from molar to molecular motions”: Southern Pacific v. Jensen 244 U.S. 205,221 (1917). But I think it is useful distinguish this clearly from any consideration of the separation of powers. Holmes’ statement can apply, and is regularly invoked, in common law jurisdictions which have no written constitution, most notably the United Kingdom. The separation of powers is a constitutional doctrine, and means in this context that, while the judiciary is the least dangerous branch of government, it does set and enforce the limits of the range of powers of the other branches, and an important corollary is that the judiciary should be particularly careful to ensure that it does not overstep the boundaries of its power under the Constitution. Those boundaries are set either expressly or by implication in the Constitution, and once identified, the prohibition is clear, absolute and mandatory for any judge appointed under the Constitution. It is not a matter of choice, restraint or self denial. The question of the boundaries set by the principle of separation of powers arises most sharply in the field of Constitutional interpretation.
33. The limits of possible judicial development of the common law are more blurred. The identification of such limits may be said to flow form a conception of the judicial function, such as a the limitations imposed by the facts of the individual case, the fact that a court can only decide the individual case, that the range of remedies available to a court are limited to the individual decision, and that the principle of precedent is an important part of the system of law. In that sense the limits on development of the common law can be said to be constitutional at some level. But I do not think it is helpful to apply the label of separation of powers to this question. Here the recognition of foreign divorces has always been understood to be a matter properly within the scope of the common law. Furthermore in so much as that law, whether contained in statute or case law, requires reference to public policy then it is inevitable that such conceptions may change over time, and that this is required to be reflected in decisions. The development of the rule of domicile, the sub-rule of domicile of dependency, the analysis of the grounds for recognition in Mayo- Perrott, the decisions in Travers v. Holley, Indyka and J.W. v. J.W., and indeed the expression of doubt as to the whether J.W. v. J.W. is correct in holding that recognition is to be decided in the light of present day public policy, are all in my view properly part of the judicial function and the common law. The fact that an area may be the subject of legislation if the Oireachtas considers appropriate, does not render it off limits for judicial decision in the absence of legislation. Nor do I think J.W. v. J.W. can be correctly characterised as solely a Constitutional decision; the decision that the common law doctrine of the wife’s dependent domicile did not survive the coming into force of the Constitution was, of course, a decision on constitutional analysis and interpretation. But that simply struck down the rule. The decision to replace it with a rule of domicile of either spouse was a matter of pure common law not influenced in any way by the Constitution. On the other had I do not see R. v. An tÁrd Chláraitheoir [2014 IESC 60 as involving any question of the limits of the development of the common law; it was a question of statutory interpretation, against the background of the double construction rule, and a constitutional challenge, all of which is part of the judicial function and, arguably, the constitutional duty of the judiciary.
34. In my view there is as a matter of principle no difference between what was done in J.W. v. J.W., what was done in G. McG. v. D.W.,: both cases involved the rule of recognition to be applied to pre 1986 foreign divorces by reference to present public policy. In each case foreign divorces which were not recognised may now be. Of course I accept that the impact of the decision in G. McG. v. D.W. may be greater than that of J.W. v. J.W., and that people may differ as to the desirability or wisdom of making any change, but that is a matter of prudence rather than principle, and certainly not, in my view, an issue touching on the separation of powers. One test is that any decision this Court may make in this case can be altered, overturned or endorsed with or without qualifications by the Legislature, and the courts would be bound to apply any such legislation. That is a natural part of the communication and cooperation between the respective branches of government and is an example of the separation of powers functioning as intended. Those cases which give rise to most concern on separation of powers grounds are where the effect of a judicial decision, normally on the interpretation of the Constitution, is to preclude legislative or executive activity in the field. Plainly that is not the case here.
35. The 4th edition of Shatter’s Family Law (Alan Shatter; Dublin; Wolfhound Press; 1997; 4th ed.), which predated the Brussels II Regulation, sets out some powerful arguments for change to a general rule of recognition of residence based divorces whether by statute or judicial decision. This is but one example of a fairly consistent stream of commentary, criticising the state of the law. A thoughtful article by McNamara and Martin, “Brussels Calling: The Unstoppable Europeanisation of Irish Family Law” ((2006), The Irish Journal of Family Law, 3, 18-21, p.1), sets out views of two former ministers for justice on the unsatisfactory state of Irish law and the desirability of introducing habitual residence as a basis of recognition. The same article quotes Mr Shatter, as describing Irish law on recognition of foreign divorces as “…a shambles. It is unnecessarily complex, uncertain, bizarre and irrational and gives effect to no coherent social policy”. I do not see any basis for assuming that the Oireachtas intended this result, still less that any alteration of the common law could properly be described as judicial legislation. I can find no expression of a view that the current state of the law is desirable.
36. If the choice is to be made, I see no basis for extending the area where foreign divorces can only be recognised on the basis of domicile since many other countries (including Ireland) have moved to less restrictive grounds for jurisdiction for granting divorce (and indeed for recognising it). There is no reason to consider the principle of domicile as an intrinsically attractive or effective test for jurisdiction. On the contrary, domicile as a test for recognition has its basis in Victorian law at a time when British subjects travelled throughout a far flung empire. In Indyka Lord Reid traced the principle to the decision in Le Mesurier v. Le Mesurier  AC 517, which considered that there was a universal rule that matters of status should be determined by the courts of the country of the party’s domicile and endorsed the dicta of Lord Penzance in Wilson v. Wilson  L.R. 2 P. & D. 435 that adoption of this rule at common law would mean that:
Judgment of Mr. Justice Clarke delivered the 3rd February, 2015.
1.2 In addition to the general problems caused for parties to foreign divorces by the complicated and arguably uncertain state of certain aspects of the relevant law (which Dunne J. has fully explored in her judgment), this case also seems to me to raise some questions about the extent to which significant change to the law can or should come about by an evolution of the common law. It is to that question that I first turn.
2. The Development of the Common Law
2.2 But the divorce, the recognition of which is at issue in this case, certainly predates the national and European legislative interventions which currently influence much of the law on the recognition of foreign divorces in this jurisdiction. The position in respect of constitutional influence is, however, somewhat different. While it is the case that the divorce with which this appeal is concerned predates the decision of this Court in J.W., nonetheless that decision is, of its nature, retrospective in effect.
2.3 It is, indeed, the potentially retrospective nature of developments in relevant jurisprudence on which I wish to touch. There is a sense in which any development in the common law is potentially retrospective. The court, in declaring the common law when a case comes to trial, is thereby applying the law as so declared to events which occurred, by definition, before the case came to trial. Thus, any evolution in common law principles which are determined as a result of a case heard today necessarily involves applying those principles to facts which occurred before that very evolution.
2.4 Much of the reticence which has been expressed in this jurisdiction concerning the over-ambitious change of the common law by judicial decision has been placed in the context of a desire not to overstep the separation of powers by permitting the courts to slip into what might properly be regarded as the constitutional legislative function of the Oireachtas (see most recently the judgments of both Hardiman J. and myself in R. and ors v. An tArd Chláraitheoir & ors  IESC 60 which, while demonstrating some disagreement on questions of detail, both caution against an overbroad use of the evolution of the common law).
2.5 In speaking of the proper constitutional role of the courts in affecting change to the law, in R. v. An tArd Chláraitheoir, I said the following, at para. 2.5:-
2.7 However, in addition to the constitutional restriction there seems to me to be an important practical reason for exercising the same caution. It is, of course, the case that the starting point has to be to acknowledge the need, as noted both by Hardiman J. and myself in R. v. An tArd Chláraitheoir, to apply old principles to new circumstances and also to acknowledge that this may result in something of an evolution of the common law.
2.8 There are both disadvantages and advantages as and between the evolution of the common law, on the one hand, and legislation, on the other, as a means of keeping abreast with necessary developments. The problem with legislation is that it can become outdated but, short of amending legislation, no means for its change exists even if it becomes fairly clear that it is no longer fit for purpose. On the other hand the common law is quite adaptable to permitting the application of old principles to new circumstances in a way which is much more likely to be fit for purpose.
2.9 Against that, common law evolution can suffer from a problem of timing. In this respect legislation (whether to amend existing legislation or change the common law) has the advantage. The precise time at which a legislative change comes into effect is easily determined. It is either the day on which the relevant legislative measure is finally passed by the Oireachtas or some later day specified in secondary legislation in accordance with the terms of the relevant measure. In most cases it is fairly clear as to whether, and if so to what extent, the legislation is to have any retrospective effect. Even where not expressly specified there are well established principles of interpretation which can help to answer the question of whether any legislative amendment (outside the field of the creation of criminal offences where retrospection is constitutionally prohibited) may be regarded as having some retrospective effect. Thus, in the case of legislative change, the extent, if any, to which the change concerned can affect rights, obligations or liabilities (deriving from a point in time before the legislation came into force) is normally fairly clear. The problem with an evolution in the common law is that it necessarily involves applying the newly evolved interpretation of the law to facts which occurred at a time when that new interpretation had not been determined. There is, thereby, inevitably some risk of unfairness.
2.10 Even where legislation is clearly intended to be retrospective to a greater or lesser extent it is likely that one of the considerations which will have led to a decision to enact such retrospective legislation which will involved an assessment of the consequences for those whose rights and obligations might be said to be retrospectively affected by the change in the law thus affected. At least to date, common law changes deriving from an evolution in the jurisprudence inevitably affect events which were the subject of the very case in which the relevant evolution occurred. It seems to me to follow that an added reason why the courts should be slow to engage in overly radical changes in the common law must be to guard against the potential unfairness which might arise in the necessarily retrospective effect of such a decision.
2.11 It must, of course, be acknowledged that one of the issues which arises in this case, at least indirectly, stems from the decision of this Court in J.W. which had the effect of the then existing law of dependent domicile being declared to be unconstitutional. As a consequence this Court determined that the law on the recognition of foreign divorces also had to change so as to allow for the recognition of a divorce where one but not both of the parties was domiciled in the relevant jurisdiction. Obviously as long as the law of dependent domicile continued to be recognised there was, in practise, no legal possibility of the parties to a marriage having a different domicile. To that extent the constitutional decision by this Court in J.W. was necessarily retrospective in the sense that it applied to the recognition of divorces which were decreed long before the decision of this Court was handed down. That is a consequence of the constitutional jurisprudence in this jurisdiction which treats unconstitutional laws as never having been validly enacted (if they post-date the coming into force of Bunreacht na hÉireann) or as not having been carried forward (if they be pre-1937 legislation or the common law as it existed at that time). That is a complicating factor to which it will be necessary to return in due course. However, against the background of those general observations, I now turn to a discussion of the core issue which arises in this case.
3.2 It seems to me that the real issue which this Court has to address is as to whether it should now be taken that the common law position, as it was understood to apply at the time but subject, for reasons to which I will turn, to constitutionally mandated change, should be taken no longer to apply to divorces which were decreed at the relevant time.
3.3 I note, as O'Donnell J. notes, that this Court, in J.W., did acknowledge that the common law was not immutable and also suggested that the recognition of foreign divorces should be based on the law of recognition as it is at the time when the question of recognition comes up rather than as it might have been at the time when the relevant divorce was decreed.
3.4 Subject to the observations which I have made earlier in this judgment, I have no difficulty at all with the first of those propositions. However, I am somewhat concerned about whether the second proposition can be said clearly to apply in all circumstances. It is, in that context, important to note the way in which a legislative change would operate in this context. It would, of course, be open to the Oireachtas to consider whether it was appropriate to legislate for the recognition of foreign divorces in a way which retrospectively altered the status of individuals. Persons who considered themselves to be divorced might, as a result, no longer be considered to be divorced and vice versa. There could be adverse consequences for such persons and, indeed, third parties whose status might, in turn, be affected. But it might be felt that whatever change was being brought about was, on balance, in the public interest, which interest might be considered to be better achieved by some degree of retrospection even though there might be some such difficulties thereby created.
3.5 As noted earlier the difficulty with a significant alteration in the common law brought about by judicial decision is that it would, at least on the current state of the jurisprudence in that regard, necessarily be retrospective. Even if there were sound reasons of policy as to why the existing common law position was outdated and ought be changed, the very fact that a change by judicial decision can have adverse retrospective effects can provide a very good reason why a change, though desirable, should be left to legislation. Whether it might ever be possible to give effect, by judicial decision, to a change in the common law without same being retrospective is an issue which was not debated in this case and on which I would, therefore, not wish to express any view.
3.6 Where a change involves the application of existing principles to new circumstances then the difficulties with retrospection may be significantly diminished. A person may be faced with considering their legal rights and obligations in circumstances where the law applying to the relevant issues is the common law and where the case law might be said to be somewhat outdated by virtue of having evolved when circumstances were different. Such a person will necessarily have to seek to predict how that law might be interpreted in the light of modern and changed circumstances. Thus the prospect of a reinterpretation of the law in the light of changed circumstances would have to be taken into account.
3.7 Where, however, the change under consideration is one which might be said to be significant and involve new or adjusted principles, then the problem of retrospection looms larger and affords, in my view, a particular reason for significant care being exercised. One of the important policy considerations which would arise in any significant legislative change is the extent, if any, to which the change should be retrospective. In many cases the disadvantages of retrospection may be such that it is hardly considered. However, where, at least to some extent, consideration is being given to change which might involve some degree of retrospection then important policy choices can arise. If one assumes, for the sake of argument, that there is consensus that the existing law is outdated or otherwise inappropriate, it does not necessarily follow that changing it with any retrospective effect is desirable. A detailed assessment of the advantages and disadvantages would require to be carried out and may well involve policy choices. Furthermore, it might, at least in some cases, be necessary to put in place detailed measures to govern the extent of any retrospection precisely because a blanket retrospective change would be considered to have disproportionate adverse effects. Thus a radical change in the common law in a manner which is necessarily retrospective may require the very sort of policy choices and issues of detailed implementation which are more appropriate to legislation. This will particularly be so where the retrospective nature of the change would affect events which occurred a very considerable period of time in the past and where the change could have significant effects on the rights and obligations of individuals. Likewise, such problems are exacerbated where the relevant law, at the time when the events under consideration occurred, appeared to be relatively well settled.
3.8 In this case the court is, in effect, being asked to declare that the common law, relevant to the time when the divorce which is the subject of these proceedings was decreed, is very different, so far as recognition of foreign divorces in Ireland is concerned, to that which would have been considered to be the case at the time. It is a radical change that is proposed and one which could have a very significant and significantly retrospective effect. It is, in my view, the sort of change which should properly be brought about, if it is considered desirable, by legislation. Limping marriages do create problems. But so also do springing divorces. Legislation is the answer.
3.9 Such legislation may very well be desirable for the reasons addressed in the other judgments in this case. The current state of the law is potentially very unsatisfactory. However, one of the factors which any such legislation would have to take into account is the question of retrospection. That involves important policy considerations requiring detailed consideration and, perhaps, detailed measures. That is exactly the sort of change which, as I suggested in R. v. An tArd Chláraitheoir, is much more suitable to legislation. For those reasons I would not be disposed to embark on the exercise of reinterpreting the common law so as to make it applicable to events which occurred a very long time ago in a way which was significantly different to the way in which that law would have been interpreted at the time in question.
3.10 Finally, I propose to return to the constitutional issue. As O'Donnell J. points out, an aspect of the determination of this Court in J.W. had the effect of bringing about retrospective change. There certainly were marriages which, prior to the decision of this Court in that case, might have been considered to subsist in Irish law but which would, as a result of that decision, have been, retrospectively as it were, considered to have been dissolved. The issue of retrospectivity is not, of course, made any easier by the fact that the issue which gives rise to it is one of the application of the Constitution rather than one involving of the common law. But it may be that the adverse consequences of retrospection are a necessary, if undesirable, consequence of the constitutional regime. If a law is unconstitutional it must be declared so even if there may be some unavoidable adverse consequences. For the purposes of this case I will confine myself to expressing the view that the fact that J.W. effected, in practise, a retrospective change in the applicable law so far as the recognition of foreign divorces in Ireland was concerned does not change my view that it would be inappropriate to bring about another significant retrospective change in that law by means of a reinterpretation in quite a significant way of the relevant common law principles.
3.11 I would add just one more observation. Further complications will necessarily arise from any law which is changed with retrospective effect. This applies whether the change is brought about by legislation, by a reinterpretation of the common law or as a result of a constitutional decision such as J.W. One of the issues which arises concerns rights and obligations which may already have been determined by the courts prior to the change concerned. What would be the position in respect of a divorce whose recognition in Ireland had been the subject of a judicial determination based on the "old" view of the common law and which, as a result of such a determination, was found not to be recognised? Does it suddenly become recognised now because the common law has been reinterpreted, or does it, as a result of the fact that it has already been the subject of a judicial determination, remain unrecognised even though another divorce which occurred in exactly the same circumstances would now be recognised? These are difficult questions. However, if a retrospective change is brought about by legislation then it might be expected that some attempt would be made to deal with questions of that type. Indeed, it might be envisaged that a point could be reached where the difficulty in dealing with such issues might be such as to lead to the view being taken that the legislation should not be retrospective at all. While it may be, of course, that similar problems arise in the context of a constitutional determination such as J.W., such problems provide, in my view, a further reason for exercising significant caution about a reinterpretation of the common law which can affect events which occurred a very long time ago and which may have significant unintended consequences.
4.2 I would, therefore, like Dunne J., answer the first question posed to the court "no". Having regard to that answer I am also of the view that it is not necessary to answer the second and third questions.
On the 4th February, 1981 and while the appellant was resident in England she applied to Willesden County Court for a decree of divorce. A decree of divorce nisi was made on the 22nd January, 1982 and the decree of divorce nisi was made final and absolute on the 14th July, 1982. It appears from the decree absolute made on the 14th July, 1982 that no financial relief or provision was granted by the court in making that order.
The appellant returned to Ireland in 2003 and worked as a carer. She subsequently moved back to Clare and on the 28th November, 2005 a family law civil bill was issued on her behalf seeking inter alia a declaration pursuant to s. 29(1)(c) of the Family Law Act 1995 that the decree of divorce granted by Willesden County Court in 1982 in respect of the marriage of the appellant and the respondent is not entitled to recognition in the State. She also sought a declaration that the marriage between the appellant and the respondent subsisted at the date of the hearing of the proceedings. In addition she sought a decree of divorce in respect of the marriage of the appellant and the respondent pursuant to the provisions of s. 5(1) of the Family Law (Divorce) Act 1996 together with ancillary relief. A defence and counterclaim was duly filed and the proceedings came on for hearing before the Circuit Court on the 12th October, 2007. In the course of the hearing before the Circuit Court reference was made to a number of conflicting decisions of the High Court in the cases of McG. v. W (No. 1)  1 IR 96, M.E.C. v. J.A.C.  2 IR 399 and D.T. v. F.L.  2 I.L.R.M. 152. The learned Circuit Court judge followed the decision in McG. v. W and held that the English decree of divorce was entitled to recognition in this jurisdiction on the basis that the appellant had been resident in England for a year at the time of the institution of the English divorce proceedings. Accordingly the Circuit Court made a declaration that the decree of divorce made at Willesden County Court was a valid divorce in this jurisdiction and dismissed the appellant’s claim for a divorce.
The appellant appealed that decision to the High Court and the Attorney General was given notice of the proceedings pursuant to s. 29(4) of the Family Law Act 1995 by order of the High Court made on the 30th November, 2008.
The appeal came on for hearing before the High Court (Edwards J.) on the 12th November, 2009. The appellant gave evidence and was cross-examined in relation to her residence and domicile at the time of the institution of the proceedings for divorce in Willesden County Court. The learned High Court judge made the following findings in the course of the hearing, namely, that the appellant was not domiciled in England either at the time of the institution of the proceedings for divorce or at the time of the grant of the decree absolute. He also found as a fact that she was resident in England for one year prior to the date of the proceedings.
Given those findings of fact, it was accepted by the learned High Court judge that the English decree of divorce would not be entitled to recognition in this jurisdiction unless the State recognised the validity of a foreign divorce lawfully granted in a country where neither party to the marriage in question was domiciled at the date of the institution of the divorce proceedings but where one party was resident at that date. In view of the fact that there are conflicting High Court authorities on the applicable law, the learned High Court judge considered that the issue relating to the recognition of foreign divorces was properly raised in the proceedings and that an important question of law arose relating to that question. In all the circumstances he considered that it was appropriate that the opinion of the Supreme Court be sought before determining the appeal and accordingly an order was made referring this matter to the Supreme Court by way of consultative case stated seeking the opinion of the Supreme Court on the following questions:
(2) If the answer to the first question is “Yes”, is it sufficient that the party resident in the country granting the divorce is resident for the period required by the law of that country to ground its divorce jurisdiction?
(3) If the answer to second question is “No”, for what period must a party to the marriage in question have been resident in the country granting the divorce in order to entitle such a foreign divorce to recognition in the State?”
The relevant statute law
(2) This section applies to the parties to every marriage, irrespective of where and under what law the marriage takes place and irrespective of the domicile of the parties at the time of the marriage.”
(2) In relation to a country which has in matters of divorce two or more systems applying in different territorial units, this section shall, without prejudice to subsection (3) of this section, have effect as if each territorial unit were a separate country.
(3) A divorce granted in any of the following jurisdictions -
(c) Northern Ireland,
(d) the Isle of Man,
(e) the Channel Islands,
shall be recognised if either spouse is domiciled in any of those jurisdictions.
(5) This section shall apply to a divorce granted after the commencement of this Act.
(6) Nothing in this section shall affect a ground on which a court may refuse to recognise a divorce, other than such a ground related to the question whether a spouse is domiciled in a particular country, or whether the divorce is recognised in a country where a spouse is domiciled.
(7) In this section -
‘divorce’ means divorce a vinculo matrimonii;
‘domiciled’ means domiciled at the date of the institution of the proceedings for divorce.”
Recognition of foreign divorces prior to the 1986 Act
An era of change
The abolition of dependent domicile of wives
Developments following the 1986 Act
In my opinion, such recognition would be consistent with what the present policy of this Court should be. The Court may not leave out of account the provisions of the Domicile and Recognition of Foreign Divorces Act 1986, which, having abolished the rule as to the dependent domicile of a married woman, provided as follows in s. 5, sub-section 1: -
‘For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled.’
While this provision applies only to divorces granted after the statute came into force on the 2nd October, 1986, it seems to me that it would be wholly consistent with the statute that this Court, as a matter of public policy, should independently modify the judge-made rule in order to do justice to the plaintiff. If the legislature considered it right that the statutory abolition of the dependent domicile rule should require the enactment of s. 5, sub-s. 1, it seems eminently reasonable that this Court, having decided that the dependent domicile rule did not survive the enactment of the Constitution, should also modify on similar lines the rule in regard to the recognition of foreign divorces in order to enable the plaintiff's divorce to be recognised.”
Counsel on behalf of the appellant in their written submissions referred to Hogan and Whyte in J.M. Kelly: The Irish Constitution (4th Ed.) at paragraph 7.6.125 in which the learned authors observed in relation to the judgment of Blayney J. as follows:
The next development was the amendment of the Constitution on the 24th November, 1995 which removed the ban on divorce. Subsequently the Family Law (Divorce) Act 1996 came into force on the 27th February, 1997. It is not necessary to set out the terms of the legislation or indeed the terms of the constitutional amendment but it is relevant to note the provisions of s. 39(1) of the 1996 Act which provides as follows:
(a) either of the spouses concerned was domiciled in the State on the date of the institution of the proceedings concerned,
(b) either of the spouses was ordinarily resident in the State throughout the period of one year ending on that date.”
Subsequent decisions on the recognition of foreign divorces
The circumstances in McG v. W. are necessary to describe. In 1998, the petitioner sought a decree of nullity of his marriage to the respondent on the basis that he lacked capacity to marry at the time of his marriage because of a prior subsisting valid marriage to the notice party. The petitioner had married the notice party in 1967 and they separated in 1978. In 1983 the notice party entered into a new relationship in England with Mr. R. and she co-habited with him in England. In 1984, the petitioner issued divorce proceedings in England relying on the notice party’s residence there for one year prior to the date of issue of the divorce proceedings. It was never suggested that the notice party had been domiciled in England at that time. A decree absolute was made in February 1985 on foot of which the petitioner married the respondent on the 25th November, 1985 in London. The respondent was a British citizen, domiciled in England. Subsequently, the notice party also married Mr. R.
At the hearing of the action the parties consented to the matter being dealt with as though it was an application pursuant to s. 29 of the Family Law Act 1995 which enables the Court to grant a declaration as to the recognition within the State of a foreign divorce.
One of the issues in the background in that case was the fact that when the proceedings were before the Master of the High Court for the purpose of fixing the time and mode of trial and determining the questions to be tried in the proceedings, the Master refused to make the order and took the view that the English divorce was of no effect and that the parties had committed bigamy. He directed that papers be sent to the Director of Public Prosecutions and as a result, An Garda Síochána interviewed a number of people including the notice party.
McGuinness J. was satisfied that there was no doubt as to the validity of the divorce in English law and equally that the marriages of the petitioner and respondent and of the notice party and Mr. R. were valid marriages in English law. The question was whether the marriage between the petitioner and the respondent would be recognised in this jurisdiction. As the 1986 Act was prospective in its application, McGuinness J. determined that the question at issue in the proceedings had to be determined in accordance with common law principles.
McGuinness J. in the course of her judgment considered the developments in the law relating to divorce in this country, by the passing of the Fifteenth Amendment to the Constitution which permitted divorce and by the enactment of the Family Law (Divorce) Act 1996. She also considered case law in relation to the recognition of foreign divorces and the changes brought about by the 1986 Act and she laid considerable emphasis on the decision of the Supreme Court in W. v. W. referred to above. She cited part of the passage from the judgment of Blayney J. at page 505 of the report which I have set out above and went on to say at page 106 of her judgment:
The decision in McG. v. W. was not followed in the subsequent case of M.E.C. v. J.A.C. The background to that case is described in the judgment of Kinlen J. There were in fact two sets of proceedings before the Court. M.E.C married the respondent J.A.C on 18th May, 1968 in County Sligo. In 1968 the appellant and the respondent moved to England. The parties separated in October 1979 and the appellant returned to Ireland. A divorce was obtained by the respondent in England on the 2nd May, 1980. The respondent then married J.O.C., the notice party on the 29th September, 1989 in London. Proceedings were brought against the respondent by the notice party in 1998 seeking a decree of judicial separation and this was granted to the notice party on the 4th May, 1999. Subsequent to the decree of judicial separation, the appellant, M.E.C., issued a special summons seeking, inter alia, a declaration that the divorce granted in London in 1980 was not entitled to recognition in Irish law on the basis that neither party was domiciled there at the time. The Attorney General was joined to the proceedings and argued against the proposition that the Irish courts should extend recognition to a decree of divorce granted by the courts of a country in which one or both of the spouses had been resident, but not domiciled, prior to and at the time of the institution of the divorce proceedings. A preliminary issue was tried in the proceedings as to whether or not the parties were in fact domiciled in England and the Court concluded that the evidence did not establish that at the time of the divorce either of the two parties to those proceedings were domiciled in England. It then became necessary to consider the question of whether the divorce obtained there was entitled to recognition on any basis other than domicile.
In the course of his judgment, Kinlen J. examined the role of the courts in modifying common law rules.
He noted the approach that was taken by the Supreme Court in W. v. W. referred to above and commented as follows:
W. v. W. did not exist in McG. v. W. or indeed in the case before Kinlen J. The Attorney General accepted that the rules regarding recognition of foreign divorces were judge made but noted that the Oireachtas had intervened by virtue of the provisions of s. 5 of the Domicile and Recognition of Foreign Divorces Act 1986 and by s. 30(3) of the Family Law Act 1995. Kinlen J. went on to observe at p. 410:
The mere fact that the Oireachtas is slow to deal with many problems in the matrimonial field does not in itself give support to the court's jurisdiction to legislate. As far back as the 1950’s Ó Briain J., President of the Circuit Court (in Attorney General v. Ballins (1964) Ir. Jur. 14) expressed the hope that the legislature would look at the whole question of bigamy. Nothing has yet been done to remedy the defects identified.
If the grounds of recognition are retrospectively extended to include the residence of either party then that will have serious implications for the way in which the State and many of its citizens have ordered their affairs. In an affidavit sworn by Ms. O'Mahony of the Chief State Solicitor's office, she avers that the 1991 census showed that the marital status of 6,103 residents was regulated by foreign divorces; by 1996 that number had increased to nearly 10,000. The Registrar General and the Department of Foreign Affairs in the granting of nulla osta certificates work on domicile not by residence.
The court is aware that there may well be a very substantial change in the whole law of recognition of foreign divorces in the very near future. There will almost certainly be referenda on ‘Brussels II’ and the ‘Nice Agreements’. However, this court cannot assume the result of referenda or prospective legislation.
Therefore, this court, being satisfied that neither party to the divorce granted by an English divorce court in respect of the marriage between the applicant M.E.C. and the respondent J.A.C. was domiciled in England at the time, finds that this divorce is not entitled to recognition within the State at this time.”
For completeness, reference should be made to two further decisions. The first of those is the case of D.T. v. F.L.  2 I.L.R.M. 152. That was a decision of the High Court which concerned a Dutch divorce. The applicant and the respondent had married in Ireland in 1980. Both parties were resident and domiciled in Ireland at that time. In 1987 the parties moved to the Netherlands but in 1992 marital difficulties arose and the applicant and children returned to Ireland. The applicant then sought a decree of judicial separation on the 6th July, 2000. By way of response, the respondent pointed out that he had obtained a divorce on the 13th July, 1994 in the Netherlands and he further claimed that that divorce was entitled to recognition in the State pursuant to the provisions of s. 29(1)(d) or s. 29(1)(e) of the Family Law Act 1995. He claimed that he had acquired a domicile of choice in the Netherlands at the time the divorce was granted and he further claimed that the divorce was entitled to recognition on the basis of residence in the Netherlands as that was the basis upon which it had been granted in that jurisdiction. By virtue of that fact he said that the divorce was entitled to recognition in the State. Morris P. concluded that the divorce was not entitled to recognition in the State and it was held that the onus was on the respondent to prove that he had relinquished his domicile of origin and acquired a domicile of choice in the Netherlands. It was concluded that the respondent was domiciled in Ireland on 13th July, 1994 and in the course of his judgment Morris P. referred to the decision in McG. v. W. It is of interest to note that while the decision in McG. v. W. was considered in the course of the case, it does not appear that the decision in the case of M.E.C. v. J.A.C. was cited in the course of the case although that judgment was delivered in March of the same year as the judgment of Morris P.
Morris P. at p. 158 said as follows:
The question now is this: what effect, if any, did the passing of this Act have upon the court’s entitlement to alter or vary the rules as to recognition and indeed whether these rules are still regulated by common law. It would follow that if they are regulated by common law then in an appropriate case the court is entitled to alter them. If the rules are regulated by statute then the court is not, as to do so would be a trespass upon the function of the legislature.”
Residence is not a basis for recognition under the Act.”
The final case to which reference might be made is a decision of the Supreme Court. That is the decision in the case of P.K. v. T.K.  2 IR 186. That case concerned the recognition of a divorce granted in New York. The High Court had considered the question as to whether or not the divorce was entitled to recognition based on domicile. The divorce in question in that case was one granted in 1980. Having granted recognition to that divorce, the applicant who had brought proceedings in this jurisdiction seeking a decree of divorce pursuant to the provisions of the 1996 Act, was not entitled to seek a divorce in this jurisdiction. She appealed and was unsuccessful in her appeal. Reference was made in the course of submissions to a passage from the judgment of Fennelly J. in which he observed:
Other legal developments
(a) in whose territory:
- the spouses were last habitually resident, insofar as one of them still resides there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her ‘domicile' there;
2. For the purpose of this Regulation, ‘domicile' shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.”
A number of observations can be made. First of all, the 1986 Act governs the recognition of foreign divorces from the 2nd October, 1986. The basis of such recognition is domicile. The provisions of Brussels II bis apply to divorces in EU states (except Denmark) in respect of divorces subsequent to the 1st March, 2005 and provide that jurisdiction is based on habitual residence. It further provides for recognition of a divorce without any special procedure being followed. Article 22 of Brussels II bis sets out the grounds for the non-recognition of judgments relating to divorce. In addition to those provisions, the Fifteenth Amendment of the Constitution provided at Article 41.2 for divorce and provided, inter alia, that a court may grant a dissolution of marriage where it is satisfied that conditions prescribed by law are complied with. Those conditions include the provisions of the 1996 Act which permitted an application for a divorce to be made where either of the spouses was domiciled in the State at the time of the institution of the proceedings or where either of the spouses had been ordinarily resident in the State for a period of one year on that date.
The final statutory provisions to which I should refer at this point are the provisions as to jurisdiction for the grant of a divorce contained in the Family Law Divorce Act 1996. As I have already said the provisions of the Family Law Divorce Act 1996 provide that the jurisdiction in relation to divorce may be exercised if either of the spouses concerned was domiciled in the State on the date of the institution of the proceedings or either of the spouses was ordinarily resident in the State throughout the period of one year ending on the date of the institution of the proceedings. Thus, two bases are provided for the exercise of the Court’s jurisdiction to grant a divorce.
It can be seen that here are a number of different criteria applicable to the recognition of foreign divorces in this jurisdiction. A foreign divorce granted after the 2nd October, 1986 will be recognised in this jurisdiction provided that it was granted in the courts of a state where one or other of the spouses was domiciled.
A divorce granted after the 1st March, 2001 but before the 1st March 2005 in an EU state will be recognised on the basis of habitual residence in accordance with the terms of the Brussels II Regulation. A divorce granted after the 1st March, 2005 in an EU State will be recognised on the basis of habitual residence in accordance with the provisions of Brussels II bis which came into force on that date. (It should be remembered that in the case of Brussels II and Brussels II bis, Denmark obtained a derogation from the provisions of the Council Regulation).
The decision of the Supreme Court in the case of W. v. W. referred to above makes it clear that a foreign divorce will be recognised if granted prior to the 2nd October 1986 in a state where one or other of the spouses was domiciled at the date of the institution of the proceedings.
If the decision of the High Court in the case of McG. v. W. is correct then a foreign divorce would also be entitled to recognition on the basis of residence if but only if the divorce in question was obtained prior to the 2nd October, 1986 as after that date, the provisions of the 1986 Act are applicable.
McGuinness J. in the case of McG. v. W. considered that it was open to the Court to extend the common law rules in relation to recognition of foreign divorces to provide for recognition on the basis of residence. She did so having regard to the decision in W. v. W. which modified the then existing common law rule as to the dependent domicile of spouses. In that regard she referred to the judgment of Blayney J. at page 505 which I have referred to above but which I think it would be helpful to refer to again. Blayney J. had stated:
McGuinness J. took the view that in deciding “what the present policy of the Court should be” she “may not leave out of account” the provisions of the Family Law (Divorce) Act 1996. The words in quotation marks were taken by her from the judgment of Blayney J. in W v. W. She added that in those circumstances it did not appear to her to be inconsistent with the 1986 Act that the Court should independently modify the judge-made rule in order to do justice to the parties in the case before her.
With great respect, I have come to the conclusion that McGuinness J. in the case of McG. v. W. was not correct in identifying what was the policy of the Court and its effect on the modification of the common law rules. In W v. W., Blayney J. first considered whether the common law rule in relation to the recognition of foreign divorces could be modified. He concluded that the common law rules were judge made laws and as such could be modified in accordance with “the current policy of the court”. In modifying the common law rule, he stated that the court should consider the rule applicable at that time which was contained in the Act of 1986 and, having done so, he concluded that the common law rule applicable prior to the 2nd October 1986 should be modified in line with the rule contained in the 1986 Act.
Thus, when the question of a further modification of the common law rule arose in the case of McG. v. W., it was inevitable that in trying to discern the public policy underlying the common law rule consideration would be given to the changes brought about by the introduction of divorce in this country as a result of the Fifteenth Amendment of the Constitution and the legislation giving effect to that amendment. The Family Law (Divorce) Act 1996 provides for jurisdiction to grant a divorce in this jurisdiction on the basis of either residence or domicile. In the case of residence, it is necessary for one of the spouses to have been ordinarily resident in the State throughout the period of one year ending on the date of institution of proceedings. No such residential requirement is necessary in the case of a party domiciled in the State on the date of institution of the proceedings.
In considering what the present policy of the court was, it was appropriate for McGuinness J. to take into consideration the changes brought about by the Family Law (Divorce) Act 1996. Having said that, whilst it is undoubtedly the case that the Oireachtas provided for the grant of divorce on two separate bases in the courts of this jurisdiction, the legislature did not at the same time vary or alter the provisions of the Act of 1986 in relation to the recognition of foreign divorces. If the Oireachtas considered it appropriate to do so, there was no reason why such a change could not have been introduced. Thus, it is my view that the policy of the court to be derived from the current statutory provisions in relation to the recognition of foreign divorces must be found in the 1986 Act which expressly provides for recognition of foreign divorces on the basis of domicile alone. If it were not for the 1986 Act, it would be open to argue that public policy requires the recognition of foreign divorces either on the basis of one year’s residence or alternatively on the basis of domicile. However, the 1986 Act is clear and is the law. For that reason, I find it difficult to see how a modification of the common law rule to provide for recognition on the basis of residence could be said to be in line with the present statutory rule. Contrast the position in McG. v. W. with the facts of W. v. W. In the latter case the question that arose was the status of the concept of the dependent domicile of a wife prior to the enactment of the 1986 Act. The Act clearly demonstrated public policy by abolishing the concept of dependent domicile. It can be seen that the approach of the Court in modifying the common law rule was entirely consistent with the statutory policy apparent in the provisions of the Act of 1986. The approach in McG. v. W. relied on the provisions of the 1996 Act to the exclusion of the existing and extant provisions of the Act of 1986 in relation to recognition. Nothing in the Act of 1996 modifies or varies in any way the provisions of the Act of 1986 in relation to the recognition of foreign divorces. For that reason, it seems to me that there was no basis for modifying the common law rule in the case of McG. v. W. The Act of 1986 expressly provides the ground upon which foreign divorces post-1986 can be recognised and I can see no basis upon which the courts could adopt a different approach for recognition in respect of a foreign divorce granted prior to 1986. I think it goes without saying that if a common law rule is to be modified in accordance with the present policy of the courts, such policy should be in line with and not in conflict with public policy as demonstrated in legislation
The fact that the law in relation to the jurisdiction for granting a divorce in the State and the law in relation to the recognition of foreign divorces use different criteria may appear to be inconsistent but that is not a reason for modifying the common law rule.
If the judgment in the case of McG. v. W. was correct, that would lead to the anomaly that foreign divorces granted prior to the 2nd October, 1986 could be recognised on the basis of residence whilst those post-1986 could be recognised only on the basis of domicile.
It could be argued that the appropriate course to take would be for the legislature to provide for the recognition of foreign divorces on the basis of residence and that such a change would have the merit of being consistent with the terms upon which a divorce may be granted in this jurisdiction and with EU provisions for recognition of foreign divorces. However, it is quintessentially a matter for the Oireachtas to legislate and not for the courts. Kinlen J. in the course of his judgment in M.E.C. v. J.A.C. at page 412 observed:
“If the grounds of recognition are retrospectively extended to include the residence of either party then that will have serious implications for the way in which the State and many of its citizens have ordered their affairs.”
It is unfortunately the case that the law in respect of the recognition of foreign divorces has developed in a way which provides for different criteria for the recognition of foreign divorces depending on the happenstance of where and when the divorce was granted. For example, the recognition of a divorce granted in New York will be based on the domicile of one of the parties; a divorce granted in an EU State after the 1st March 2005 will be recognised on the basis of habitual residence in accordance with the provisions of Brussels II bis which came into force on that date. Had the divorce at issue in this case been granted after the 1st March 2005, the provisions of Brussels II bis would have applied and on the facts of this case it is difficult to see any basis which could have precluded its recognition. Is there any justification for a system of recognition based on habitual residence for one group of people while for another group recognition is based on domicile? Given the disparity between the different criteria for recognition of foreign divorces in this country and the importance of permitting people to have clarity and uniformity in relation to their status, it seems to me that it is desirable to reconsider the legislative position in relation to this difficult issue so that there could be, so far as is possible, a uniform approach to the recognition of foreign divorces. After all, people are surely entitled to have certainty as to their marital status.
In conclusion, having regard to the circumstances of this case, I would answer the first question raised as follows: