In answer to a parliamentary question, however, the minister said that she was awaiting the expert report of the Law Reform Commission, which is examining the recognition of foreign divorces, as part of its fifth programme.
“When the expert report of the Law Reform Commission is completed, it will provide valuable guidance for the development of proposals for legislation on the recognition of foreign divorces,” the justice minister told the Dáil (26 January).
The minister was responding to a question from Fine Gael TD David Stanton as to when she expected proposals to be progressed for the recognition of foreign divorce in Ireland.
Dublin’s Brophy Solicitors points out that the recognition of foreign divorces, foreign annulments and foreign marriages is increasingly important, given the number of migrants now living in Ireland.
The Registrar of Civil Marriages may refuse to perform a ceremony if there is any doubt over the validity of a previous marriage, divorce or annulment.
A declaration of validity may be required from the Circuit Court, which may require assistance from lawyers in the country granting the orders under question, the firm has pointed out.
If neither party is domiciled in the country where the divorce is obtained, then that divorce will not be recognised in Ireland – even though it might be recognised in the country where the divorce was obtained.
If a foreign divorce is not recognised in Ireland, legally one remains married to the first spouse, and the second marriage will not be recognised.
The Domicile and Recognition of Foreign Divorces Act 1986 provides that such a divorce may only be recognised in Ireland if it was granted in the country where either spouse was domiciled on the date that the divorce proceedings were instituted.
The determination of “domicile” includes an assessment of the intention of the person to remain indefinitely in the foreign jurisdiction.
Recognition of foreign divorces granted prior to the 1986 act is governed by common-law domicile rules.
The recognition in Ireland of a divorce, legal separation or marriage annulment granted in another EU member state, after 1 March 2001, is governed by EU Council Regulation 2201/2003 also known as the Brussels II bis, which provides for EU judicial co-operation in cross-border matrimonial matters.
The Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020 makes provision for the recognition in Ireland of divorces granted in the UK or Gibraltar, and has been in operation since 31 December, 2020.
Where there is an issue as to whether a foreign divorce is entitled to recognition, section 29 of the Family Law Act 1995 allows application to court for a declaration on marital status, including whether a foreign divorce is recognised in the State.