Recognition of Foreign Divorces by Irish Courts

Q:   I have been living in Ireland for four years and moved here because my husband was offered a job. We are from Paraguay and not long after we arrived here we separated. I wanted to get a divorce here but didn’t want to wait four years and since we married in Paraguay and were from there originally my husband wanted to get divorced there, so I agreed. We flew to Paraguay, got our divorce and flew back. My husband sometimes threatens that he will not pay his maintenance and there is no security for the maintenance and now I understand that I could have gotten what is called a judicial separation here and I was wondering if I still can?

 

A: When the parties moved to Ireland,   did they form the intention that they were to move to this jurisdiction indefinitely? If the answer is yes it poses the question whether their place of domicile changed from Paraguay to Ireland. Further, I believe that the wife should obtain what is called an Affidavit of Laws from a Paraguayan lawyer so as to confirm the validity of the Paraguayan Divorce, in circumstances where neither of the parties were resident in Paraguay at the time of the application for the divorce.

Legislation

The Domicile and Recognition of Foreign Divorces Act, 1986 governs the recognition of foreign divorces that were applied for after the 2^nd of October 1986. Section 5(1) provides: “For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled”. This means that if either spouse was domiciled in the jurisdiction granting the divorce at the date the proceedings were initiated, the divorce is entitled to recognition in Ireland. Thus, when a court recognises a foreign divorce decree the parties are seen by Irish law as being validly divorced.

Therefore, even if the wife in this case argued that she had moved to Ireland with the intention of never moving back to Paraguay and it was found that her domicile had changed to Ireland, if her husband still claimed Paraguayan domicile, that would be enough for the divorce to be recognised in the Irish courts.

Section 29 of The Family Law Act, 1995provides that “an application can be made under s.29 seeking a declaration that a foreign divorce is entitled to recognition in Ireland.”

Part III of the 1995 Act introduced a procedure whereby a person who was divorced abroad after 1^st August 1996 can apply for certain reliefs in Ireland. Reliefs may also be applied for in relation to any dependant family members. Most reliefs under the 1995 Act are available save for preliminary reliefs. A person does not have an automatic right to apply for such reliefs and therefore an Applicant must get the leave of the court by way of an ex parte application. The court will only grant leave where it finds that there is a substantial ground for doing so and that at least one requirement under section 27 is established. Section 27 states:

27.—(1) Subject to subsection (2), the court may make a relief order if, but only if, at least one of the following requirements is satisfied:

( a ) either of the spouses concerned was domiciled in the State on the date of the application for an order under section 23 (3) in relation to the relief order or was so domiciled on the date on which the divorce or judicial separation concerned took effect in the country or jurisdiction in which it was obtained,

( b ) either of the spouses was ordinarily resident in the State throughout the period of one year ending on either of the dates aforesaid;

( c ) on the date of the institution of the proceedings aforesaid either or both of the spouses had a beneficial interest in land situated in the State.

Section 23(3) mentioned in s.27(1)(a) relates to the ex parte application stage. The court must also be satisfied that, in all the circumstances of the case, that such an order is appropriate. In considering what is appropriate, the court shall have regard to the matters set out in Section 26 of the Act:

26.—The court shall not make a relief order unless it is satisfied that in all the circumstances of the particular case it is appropriate that such an order should be made by a court in the State and, without prejudice to the generality of the foregoing, in deciding whether to make a relief order, the court shall, in particular, have regard to the following matters:

		( a ) the connection which the spouses concerned have with the State,
		( b ) the connection which the spouses have with the country or jurisdiction other than the State in which the marriage concerned was dissolved or in which they were legally separated,
		( c ) the connection which the spouses have with any country or jurisdiction other than the State,
		( d ) any financial benefit which the spouse applying for the making of the order (“the applicant”) or a dependent member of the family has received, or is likely to receive, in consequence of the divorce or legal separation concerned or by virtue of any agreement or the operation of the law of a country or jurisdiction other than the State,
		( e ) in a case where an order has been made by a court in a country or jurisdiction other than the State requiring a spouse, or the spouses, concerned to make any payment or transfer any property for the benefit of the applicant or a dependent member of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with,
		( f ) any right which the applicant or a dependent member of the family has, or has had, to apply for financial relief from a spouse or the spouses under the law of any country or jurisdiction other than the State and, if the applicant or dependent member of the family has omitted to exercise any such right, the reason for that omission,
		( g ) the availability in the State of any property in respect of which a relief order in favour of the applicant or dependent member of the family could be made,
		( h ) the extent to which the relief order is likely to be enforceable,
		( i ) the length of time which has elapsed since the date of the divorce or legal separation concerned.

Case Law

In what can be quite a complex area of the law, it is important to examine the case law that has emerged in the area. In MEC v JAC [2001] 2 IR 399 – The High Court (Kinlen J.) held, in granting the relief sought,

1. that the courts of Ireland would recognise a decree of divorce if either spouse was domiciled in the jurisdiction in which the divorce proceedings were instituted at the time those proceedings were instituted.

2. That, as both the Applicant and Respondent were domiciled in Ireland at the time of the divorce, the decree could not be recognised in the State.

3. That any suggested radical change in the hitherto accepted law should more properly be effected by statute and the fact that the Oireachtas was slow to deal with many problems in the matrimonial field did not of itself give support to the court’s jurisdiction to legislate.

DT v FL [2009] 1 IR 435 (Supreme Court) – The parties were Irish citizens and were married in Ireland in 1980. The parties and their three children moved to the Netherlands in 1987. Upon the breakdown of the marriage in 1993 the Applicant returned to Ireland with the three children. The Respondent remained in the Netherlands. In 1993 the Applicant issued proceedings in the District Court of Rotterdam seeking maintenance for her and the children. The Applicant did not seek a decree of divorce. The Respondent instituted proceedings in 1994 in the District Court of Rotterdam seeking a decree of divorce. The Applicant did not object to the relief being granted and sought orders for maintenance for her and the children and also for custody of the children. The District Court of Rotterdam accepted jurisdiction on the basis of the Respondent’s residence in the Netherlands for more than twelve months. A decree of divorce was granted along with an order for spousal maintenance in favour of the Applicant. The Applicant instituted family law proceedings against the respondent in 2000, in Ireland, seeking a decree of judicial separation and ancillary orders. The Respondent sought a declaration that the decree of divorce obtained in the Netherlands should be recognised in the State. The High Court (Morris P.) refused the declaration and held that the Respondent was domiciled in Ireland and that residence was not a basis for recognising the divorce obtained in the Netherlands. The Respondent appealed to the Supreme Court which dismissed the appeal.

It must be noted that with the coming into force of either Brussels I (2001) or Brussels II (2003), the above decision could well have been different. However, since Paraguay is not a party to Brussels I or Brussels II, the decision is still relevant.

MR v PR[2005] 2 IR 618 – In considering the ex parte stage of Part III of the 1995 Act, Judge Quirke in the High Court, in refusing to set aside the granting of leave and in granting the relief sought by the Applicant, held that an Irish court should not interfere with, supplement or adjust an order of divorce obtained in a foreign court save in exceptional circumstances, and only when satisfied that the outcome of those proceedings had been unfair or unjust and that no remedy was available to the Applicant in that jurisdiction.

PWY v PC [2008] 2 IR 262 – The parties to the proceedings had been divorced in Hong Kong in 2002 and were now living in Ireland. The Respondent sought an order setting aside an order of the High Court which granted the Applicant leave to seek relief pursuant to Part III of the Family Law Act 1995. Sheehan J in the High Court held that, in setting aside the order which granted the Applicant leave and refusing a further application for leave,

1. , that the court had an inherent jurisdiction to set aside an order granting leave to apply for relief pursuant to s. 23(3) of the Family Law Act 1995 that had been made on the basis of an ex parte application, including cases where there was an absence of mala fides.

2. That the inherent jurisdiction to set aside an order granting leave, which had been made on the basis of an ex parte application, should only be used in exceptional cases. Material non-disclosure of a serious nature in an application where leave was obtained constituted such an exceptional case.

3.      That the court had no jurisdiction to grant leave unless one of the requirements of s. 27 of the Family Law Act 1995 was met. The court should look at ss. 23 and 26 together when assessing whether to grant leave. An Applicant must have established a substantial ground and have established that a court in this State was the most appropriate venue for hearing the application. Inherent in the notion of a substantial ground was the appropriateness of an order being made by a court in this State.

4.      That the requirements to obtain leave under ss. 23 and 26 of the Family Law Act 1995 and the factors to consider when establishing jurisdiction, should be taken in conjunction. It was not necessary to show hardship or injustice in considering whether there was a substantial ground for an application and regard must have been had to comity and forum non conveniens.

Agbaje v Agbaje[2009] 1 FLR 987– This was another English case considering the equivalent English legislation. The parties were a Nigerian couple who had spent most of their 32-year marriage in Nigeria, although they had also spent some time living in England, and had acquired British citizenship. The husband owned a property in London, which was used as a base while visiting the children of the family, who were being educated in England. After the separation the wife moved from the matrimonial home in Nigeria to the English property. The husband applied for a divorce in Nigeria. Four months later the wife petitioned for a divorce in England, and then filed an answer and cross-petition in the Nigerian divorce proceedings, seeking ancillary relief in the form of a lump sum worth about £42,000 and property transfers worth about £500,000. The Nigerian court refused to stay the Nigerian proceedings, and shortly afterwards the English court dismissed the wife’s application for an anti-suit injunction against the husband, on the basis that ‘there was no evidence that substantial justice could not be obtained by the wife in the courts of Nigeria’ and no ‘cogent evidence that England is the natural forum for the decision-making process in relation to these parties’ divorce’. Ultimately the Nigerian court granted the husband a divorce, awarding the wife a life interest in the matrimonial home in Nigeria, which was worth about £83,000, (the court had no power to make a property transfer order), plus a lump sum payment of £21,000 as ‘maintenance for life’. The husband retained assets of about £616,000, including two properties in London. The wife then sought leave, without notice, to issue an application for financial relief following an overseas divorce, pursuant to Pt III of the Family Proceedings Act 1984. The leave judge produced a short judgment granting the wife leave. However, on the husband’s application to set aside the leave, the leave judge produced a much longer judgment, setting out in some detail his reasons for concluding that there were exceptional circumstances and that the wife would suffer real hardship unless leave were given. The Court of Appeal refused the husband permission to appeal the grant of leave. The trial judge, who placed considerable reliance on the judgment given by the leave judge, eventually awarded the wife £275,000 from the sale of the English property, on condition that she transfer her life interest in the Nigerian property to the husband. The husband’s appeal raised questions as to: (i) the proper scope and role of the leave application and the essential difference between the leave application and the substantive application; (ii) the purpose of the 1984 Act; (iii) what account should be taken of comity and rules of forum; and (iv) when it was ‘appropriate’ to order financial relief under Pt III.

Held – allowing the husband’s appeal and dismissing the wife’s claim for relief under Pt III –

1. The permission stage was intended to give the potential respondent adequate protection against having to present a strong defence at substantial cost; it was also intended to provide some measure of protection against the possibility of applications being used to exert improper pressure to settle in order to avoid the expense of contesting an application. At the without notice permission stage the judicial task was to decide whether there was a ‘substantial ground’ for making the order, on the basis of a quick impressionistic assessment of the merits, bearing in mind that the object of the exercise was to weed out the weak case.

2. The purpose of the jurisdiction to award financial relief after an overseas divorce, under Pt III of the Family Proceedings Act 1984 was to remit hardship in the exceptional case in which serious injustice would otherwise be done.

3. Comity between courts of competing jurisdiction had a significant influence on the way in which the decision under Pt III had to be taken. Although the importance of comity and the forum conveniens rules ought not to be pressed too far, it was necessary, for the sake of consistency, to pay close regard to the interests of justice as they would have affected a stay of the English proceedings, and such interests of justice as would require the correction of the order made by the foreign court.

4. The focus should be on whether, objectively speaking, substantial justice or injustice had been done overseas, a fortiori when the foreign court was the appropriate forum for granting the divorce and regulating the financial consequences of the dissolution. It would be wrong to focus simply upon a comparison between the size of the overseas award and the size of the potential award in England; whilst disparity was an obvious factor, it should not be permitted to dominate. If the appropriate court had made an appropriate order, the court might well be satisfied, ordinarily, that it was not appropriate to make a further order under Pt III.

5. The judge had erred in principle. The trial judge had not referred to the couple’s connection with Nigeria when dealing with s 16, although the connection with the divorce court was a factor that merited particular attention, and was a more weighty factor than the connection the parties had with England and Wales. The judge had not addressed the need for respect and deference to be paid to the Nigerian court, although comity between this jurisdiction and a Commonwealth jurisdiction that had largely embraced our traditions was an important factor in the case. The judge had not addressed expressly the award made by the Nigerian court, and whether a serious injustice had been done to the wife in Nigeria. Finally, the judge had failed to explain why this was an exceptional case in which the wife should be allowed a second bite of the cherry

6. The husband and wife had a more significant connection with Nigeria than with England, and Nigeria, not England, was the natural and appropriate forum for resolution of the wife’s claims. No substantial injustice had been done to the wife in Nigeria. Although it was plain that the wife would suffer real hardship in England and Wales, because she had exhausted the lump sum designed to provide for her sustenance in Nigeria, comity commanded respect for the overseas order

Conclusion

The querist and her husband are both Paraguayan  nationals who were married in Paraguay and their connection with Ireland has only been in existence for the previous four years. It is unlikely that their domicile has changed to Ireland unless they formed the intention to come to Ireland and stay in the jurisdiction indefinitely or since relocating to Ireland they formed this intention. The residency factor is something to take into account when deciding on whether a person’s place of domicile has changed, however, it has been said that the domicile of origin persists until it has been clearly shown to have changed (Re Joyce [1946] IR 277). Even if the Applicant formed the view that her domicile was in Ireland, unless the Respondent formed a similar view, he could still rely on section 5(1) of the Domicile and Recognition of Foreign Divorces Act, 1986, stating that his domicile was always Paraguay and therefore the Paraguayan Divorce would have been obtained legally and in return capable of recognition in this jurisdiction. I am not aware if there are any residency requirements in relation to a Paraguayan divorce where both parties are Paraguayan nationals who were married in Paraguay. An Affidavit of laws might need to be obtained in order to clarify the validity of the Paraguayan divorce and the law and rules in relation to obtaining a divorce in Paraguay. If residency is not a factor and the parties were therefore validly divorced in Paraguay, under the Domicile and Recognition of Foreign Divorces Act, 1986,  an Irish court recognises a foreign divorce decree and the parties are seen by Irish law as being validly divorced. In effect an Order for Judicial Separation could not be sought in the Irish Courts.

Part III of the 1995 Act states that firstly leave must be granted in order to apply for such relief. Part III says that a court will only grant leave where it finds that there is a substantial ground for doing so and that at least one requirement found under section 27 is established. The Applicant in this case could satisfy the requirement set out in section 27(1)(b) which states that “either of the spouses was ordinarily resident in the State throughout the period of one year ending on either of the dates aforesaid”

The court must also find that there is a substantial ground for granting relief at this first stage in the process. In deciding whether there is a substantial ground and whether it is appropriate to grant leave, the court looks to section 26. In considering section 26(a)-26(i) I believe that unless there is some evidence that the Respondent has or will default in paying maintenance in the future, it is my opinion that there is strong grounds for not getting through the leave stage.

I believe that the recent case of DT v FL [2009] 1 IR435 is very relevant to the case at hand. After living in the Netherlands since 1987, the court still found that in 2000 the Respondent was still domiciled in Ireland. In applying the facts, I believe that both parties would still be found to be domiciled in Paraguay. The court found in DT v FL that both parties domicile was Ireland and this overrode the Netherlands divorce where the Netherlands courts had accepted jurisdiction on the basis that residency factors had been satisfied.

I believe that the cases of MR v PR[2005] 2 IR 618,PWY v PC [2008] 2 IR 262,Agbaje v Agbaje[2009] 1 FLR 987 are all relevant to the case at hand. Although two of the decisions are English and not binding on an Irish court, the legislation in this area of the law is similar and the decisions could be found to be persuasive to an Irish Judge. I outlined the facts as I found them to be very relevant to the facts of the case at hand. In MR v PR Quirke J in the Irish High Court stated that a court should not interfere with a decision of a foreign court save where there is exceptional circumstances and that the outcome of the foreign court proceedings had been unfair or unjust and that no remedy was available to the applicant in that jurisdiction. In applying this case to the facts, I do not believe that a court would find that an exceptional circumstance is the fact that there is no security for maintenance for the Applicant and that the Paraguayan Divorce was unfair or unjust to the Applicant. It is therefore, in my opinion, that an application by the Applicant under Part III would not be successful.

LegalEagleStar , Wednesday , 9^th March ,  2011