By Niamh Ellis
A Supreme Court judgment has upheld a decree of nullity granted in a family-law case after concluding that a German divorce obtained before a later marriage could not be recognised under the Irish law then in force.
The parties are anonymised as A.S., otherwise A.B., and R.B. The wife had married another man in Ireland in 1976. That marriage was dissolved by a German court in 1985. She then married R.B. in West Germany in October 1986.
The High Court subsequently declared the second marriage invalid. Its conclusion was that neither party to the first marriage was domiciled in Germany when the German divorce was granted. Under the common-law rules applying before the Domicile and Recognition of Foreign Divorces Act 1986 came into force, that meant the divorce was not recognisable in Ireland.
Chief Justice Keane agreed. He found that both the wife and her first husband had made Ireland their permanent home by the relevant period. Both had arrived in Ireland as children, were educated and worked here, and established their family and working lives in the State. Their continuing German cultural and family connections did not establish German domicile.
The wife also argued that the High Court proceedings had been unfair after an adjournment was refused and she proceeded for part of the hearing without legal representation. Keane C.J. rejected that challenge. He found the case had already been repeatedly adjourned and said the trial judge had handled the difficult proceedings fairly and with appropriate concern for her position.
A related custody dispute concerned the parties' younger child. The Supreme Court judgment said his custody with the father was not seriously contested, while access remained for agreement or determination in the High Court.
However, Keane C.J. held that the trial judge should not have privately interviewed the parties' older son as a means of receiving evidence. No further order was required on that point because the remaining live issue concerned access to the younger child.