The Supreme Court has ruled that an overseas divorce granted before 2 October 1986 cannot be recognised in Ireland solely because one spouse was resident in the country that granted it, where neither spouse was domiciled there when divorce proceedings began.
The ruling came in a consultative case stated arising from an appeal by M. H. against G. H., with the Attorney General as notice party. The High Court had referred three legal questions to the Supreme Court because of conflicting High Court decisions. The Court, in a judgment delivered by Ms Justice Dunne on 3 February 2015, answered the first question “No”. It said there was no need to answer the other two.
The case arose from the parties’ 1982 divorce in England. They had married in Ennis in 1966 and lived on a farm in County Clare with their six children. M. H. alleged that G. H. had been violent towards her; he denied the allegations. She left for England in 1978, returned in 1979, then left again for London with their youngest child. While resident in England, she applied for divorce. The English decree became final in July 1982 and made no financial provision, according to the judgment.
After returning to Ireland, M. H. brought proceedings seeking a declaration that the English decree was not entitled to recognition here, a declaration that the marriage still subsisted, and an Irish divorce with ancillary relief. The Circuit Court held that the English divorce was valid in Ireland because she had lived in England for a year before proceedings began, and dismissed her divorce claim.
On appeal, the High Court found that M. H. was resident in England for a year before the proceedings but was not domiciled there either when they began or when the decree became final. Rather than decide the appeal amid conflicting authorities, it referred the legal questions to the Supreme Court.
The Supreme Court considered whether the pre-1986 common-law recognition rule could be extended to include residence. The 1986 Act provides for recognition based on domicile for later divorces; the judgment said the 1996 Irish divorce legislation did not change that recognition rule. Ms Justice Dunne concluded that the courts could not extend the earlier rule to residence in a way inconsistent with the legislative policy. She said any broader change was for the Oireachtas.
The judgment resolves the referred legal question, but does not itself determine the appeal or make a final ruling on whether the 1982 divorce is recognised in this case. The High Court was to determine the appeal after receiving the Supreme Court’s opinion.