The Supreme Court dismissed a husband’s appeal over whether his Dutch divorce should be recognised in Ireland, holding that he had not proved he abandoned his Irish domicile of origin and acquired a domicile of choice in the Netherlands.
The judgment, delivered by Chief Justice Keane on 26 November 2003, concerned a preliminary issue in the wife’s High Court proceedings for judicial separation and ancillary relief. The Supreme Court affirmed the High Court’s order that the Dutch divorce was not entitled to recognition in Ireland. It refused to remit the case for another hearing, concluding that the admitted and agreed facts could lead only to that result.
The couple, both Irish citizens, married in Ireland in 1980 and moved to the Netherlands with their three children in 1988. The wife returned to Ireland with the children in 1992 after difficulties in the marriage. She began Dutch divorce proceedings in 1993, initially seeking interim maintenance, but did not pursue the divorce application. The husband began proceedings in the Netherlands on 2 March 1994. The Dutch court granted the divorce on 12 September 1994.
The husband argued that he had acquired a Netherlands domicile of choice by the time he began those proceedings. The Supreme Court considered whether he had formed a settled purpose to reside there indefinitely and abandon his Irish domicile. It said his enjoyment of life in the Netherlands and evidence that he felt at home there did not establish that intention. His continued residence was closely tied to the availability of suitable, remunerative work and his personal circumstances; it remained possible he would return to Ireland if those circumstances changed.
The husband’s December 1993 letter to his Dutch lawyer, stating an intention to change his domicile, carried little weight, the court said. It was written in the context of divorce proceedings and with an apparent aim of avoiding an obstacle to the divorce. The court also noted that an offer of work in Ireland existed when the husband began the Dutch proceedings and that he returned permanently in May 1994. It did not rely on that factor in deciding the appeal, because the High Court judge had not relied on it.
The husband had also challenged factual errors and omissions in the High Court judgment. The Supreme Court considered the errors peripheral to the central domicile issue. His alternative argument, based on a modified recognition rule for foreign divorces, was no longer pursued on appeal. The Attorney General, who had been joined as a notice party, took no further part in the appeal.