The Supreme Court’s majority rejected a broader basis for recognising foreign divorces granted before 1986, according to a dissenting judgment by O’Donnell J delivered on 3 February 2015. The court was answering questions in a case stated; the judgment does not set out a final order on the underlying family proceedings.
The anonymised applicant, M H, had obtained a divorce in England in 1982. The High Court had found that she was not domiciled in the UK when it was granted. O’Donnell J said she was bona fide resident there and had lived there for 22 years as a divorced woman. The judgment describes the divorce as valid under UK law. The source does not give the other parties’ names beyond initials.
M H sought a declaration concerning the parties’ marital status between 1982 and 2005. The underlying Circuit Court proceedings also sought financial and property-related relief, including periodic and lump-sum payments, a right to occupy the family home to the exclusion of the respondent, and transfer of the respondent’s interest in the home and its contents. These were claims described in the judgment, not orders reported as having been made.
O’Donnell J considered that Irish courts should recognise a foreign divorce granted on a basis, such as bona fide residence, on which Irish courts themselves could grant a divorce. He relied on changes in Irish divorce law and European rules recognising divorces on residence grounds. He argued that broader recognition could reduce “limping marriages”, where a couple’s marital status differs between countries.
But O’Donnell J was in the minority. He acknowledged that the majority had reached a different conclusion and agreed with the view that legislative reconsideration was desirable to provide greater certainty. In answering the case-stated questions, he would have answered the first “yes” and said the applicant for divorce would satisfy the relevant jurisdictional test if she met Article 3 of the Brussels II bis Regulation. Those answers state his dissenting position; the source does not reproduce the majority’s answers or the court’s formal order.