The Supreme Court answered “no” to the first question in a case about whether Irish common law on recognising foreign divorces should be reinterpreted retrospectively. Clarke J., in a concurring judgment delivered on 3 February 2015, agreed with Dunne J.’s analysis and said the court should leave such a significant change to the Oireachtas.
The case came before the court as a case stated under section 38 of the Courts of Justice Act 1936. M.H. was the applicant and appellant, G.H. the respondent, and the Attorney General a notice party. The judgment excerpt does not identify the country or date of the divorce, or set out the questions referred to the court in full.
Clarke J. said the common law had generally been understood to require both parties to a foreign divorce to be domiciled in the jurisdiction that granted it. At the time, the doctrine of dependent domicile meant that, in practice, the test could be met if the husband was domiciled there. He noted that the Supreme Court’s 1993 decision in J.W. had declared the law of dependent domicile unconstitutional and had required a change to the law governing recognition of foreign divorces.
The issue in this appeal, Clarke J. said, was whether the common law should now be treated as having been different for divorces granted long before that change. Reinterpreting the law could affect people’s marital status and the rights of third parties. Because a common-law change would apply to past events, he warned, it could have unintended and unfair consequences, especially where the law had appeared settled and the events were long in the past.
Clarke J. accepted that the existing law could be unsatisfactory and that legislation might be desirable. But he said deciding whether a change should apply retrospectively, and to what extent, would require policy choices and detailed provisions better suited to the legislature. He referred to the potential problems of “limping marriages” and “springing divorces” and concluded: “Legislation is the answer.”
He agreed with Dunne J. that the first question should be answered “no”. In his view, there was no need to answer the second and third questions. The excerpt records Clarke J.’s concurring reasons; it does not set out the other judges’ full reasoning or any separate formal order beyond those answers.