Recognition of Foreign Divorces – Brussels II

Divorces obtained in the EU countries (apart from Denmark) have been subject to the provisions of the Brussels II Regulations since 1st March 2005.

Accordingly, any person seeking a divorce in any country in the EU will have to show either:-

That the spouses are habitually resident in that country, or

The spouses were last habitually resident there, provided one of the still resides there, or 

The respondent is habitually resident. or 

In the event of a joint application, either of the spouses is habitually resident or 

The applicant is habitually resident if he/she resided there for at least a year immediately before the application was made, or

The applicant is habitually resident if he/she resided there for at least six months immediately before the application was made and is either a national of the member state in question or in the case of the United Kingdom and Ireland has his/her domicile there.

We are currently dealing with a case where a lady has obtained a divorce in her home country and this has created a huge problem for my client, who is a non-EU national and in theory could end up being deported. The applicant however was not resident in her home country when she obtained the divorce, but was resident in Ireland and had been for several years. Under Irish law, she would not have been entitled to apply for a divorce because she had not been separated for over four years out of the previous five. She therefore decided to apply for a divorce in her home country where divorce is permitted where couples are separated for only one year. We are arguing that the entire divorce is not valid and cannot be recognised in Ireland because neither she nor our client qualified under the various headings set out above. 

A growing number of foreign nationals in Ireland are resorting to obtaining divorces in their home country where the criteria for obtaining a divorce may be less strict than in Ireland. However, unless the provisions set out in Brussels II have been complied with, that divorce may not be recognised in Ireland and this can have enormous consequences for all parties.

Kevin Brophy,
Brophy Solcitors

I am still Having Sex with my Wife – Am I Entitled to a Judicial Separation?

A client recently came to me very upset saying that he suspected that his wife was having an affair and she now wanted to separate from him. They have young children and he described to me in very emotional terms how if anybody came to his house, they would think they were the perfect couple. They get on well with each other and the children are all happy and completely oblivious to the problem their parents appear to have.

My client said that he wanted to contest his wife’s application for a judicial separation because he said they have been having a physical relationship on a regular basis and this had been ongoing up until about a month ago. He said that he believed that unless you had been living apart for over a year, you are not entitled to a judicial separation.

Unfortunately, he was not correct. You are entitled to obtain a judicial separation if you can prove that:-

• One party has committed adultery.
• One party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them.
• One party has deserted the other for at least a year at the time of the application.
• The parties have lived apart from one another for one year up to the time of the application and both parties agree to the decree being granted.
• The parties have lived apart from one another for at least three years at the time of the application for the decree (whether or not both parties agree to the decree being granted).
• The court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of the application for the decree.

This final heading is the heading under which my client thought he would be able to contest his wife’s application for a judicial separation. It is certainly the most common ground upon which people apply for a judicial separation. However, I had to advise him that if the relationship between them has broken down and the court decides that it had broken down because he had behaved in such a way that it would be unreasonable to expect his wife to continue to live with him, then she may still be entitled to a divorce. This is a very grey area and if there are any difficulties at all in a relationship, it would be possible to make an argument that the wife in the example I have given above would be entitled to a divorce if she can show that her husband was acting in a selfish manner or an aggressive or unpleasant manner to the extent that it would be unreasonable to expect her to continue living with him. This is probably the argument that his wife is going to make.

The decision he has to make is whether he should contest the matter knowing that in doing so he is prolonging a relationship, which she is vehemently stating is over. If he finds out that his wife is having an affair, then all this will do is give him grounds for a judicial separation.

It’s a difficult decision. My advice to him was to sit down with his wife and if the relationship between them is as civil and amicable as he tells me it is, then there has to be a reasonable prospect that she will agree to go to counselling to see if whatever problems they have can be resolved.

That is sensible and reasonable but the problem is that if she is having an affair then commonsense and logic may fly out the window.

Kevin Brophy

Brophy Solicitors

Recognition of Foreign Divorces

There are an awful lot of people in Ireland, who have committed bigamy and do not know it.

I say this because I have recently had to advise two separate clients that their divorce would not be recognised if it ever came before a court in Ireland and as a result, their second marriage will not be recognised here in Ireland.

For instance it is relatively easy to obtain a divorce in most of the states in the US.

In many of the states in the US, you only have to be resident in the State for six months prior to making your application for a divorce.

The problem however is that while your divorce might be recognised in the country where you obtained the divorce, that does not automatically mean it will be recognised here. The basic rule in Ireland is that foreign divorces will be recognised here provided one of the parties was domiciled in the country or the State where they obtained the divorce.

This is an extremely complicated area but the one thing that can be said with certainty is that if you are domiciled in Ireland (and by domicile, I do not mean residence) then your divorce will only be recognised in Ireland provided your partner was domiciled in the country where the divorce as obtained.

So what are the consequences if it turns out that your first marriage is still legal and binding? It means that if you die, your present wife is not entitled to automatically inherit and in fact if you died without leaving a will, your first wife - who you may have thought you had divorced 20 years ago or longer - could be entitled to as much as 2/3rd of your estate.

If you have any concerns, check it out with a solicitor.

Kevin Brophy
Brophy Solicitors

What is Proper Provision in Divorce Cases?

Many people, particularly wives, seem to think that if they divorce, they are automatically entitled to 50% of everything their husband has. Often the husband thinks he has the same entitlement. The position is set out in the Family Law (Divorce) Act, 1996, which states that every case will be the decided on its own particular merits but that the court will specifically take the following into account in deciding what constitutes proper provision:

• The income and earning capacity and financial resources of both spouses.
• The income and earning capacity and financial resources of both spouses.
• The financial needs, obligations and responsibilities which each spouse has or is likely to have.
• The standard of living of the spouses before the proceedings.
• The age of the spouses and the length of their marriage.
• Any physical or mental disability of the spouses.
• The contribution, which each of the spouses has made or is likely to make to the welfare of the family.
• Whether the earning capacity of either of the spouses has been affected by the marriage.
• The income and benefits to which either spouse is entitled.
• The conduct of each of the spouses.
• The accommodation needs of either spouse.

The benefit (e.g. under a pension scheme) which one of the spouses may forfeit by virtue of the divorce.

The rights of any third party affected by the divorce.

This is extremely wide but at least it gives you an idea what the court can take into account before granting a divorce.

Many people believe that the court is no longer interested in the reasons why a marriage broke down. In other words, they do not attribute blame. As you can see under (i) above, the conduct of the spouses can be very relevant. Under (d) above, the length of the marriage is very relevant and is particularly so in cases where the marriage was short lived. An argument can be made under (b) above that if one spouse has not worked for many years then it can be argued they have an obligation and a responsibility to perhaps look for employment in order to ease the financial burden on the other spouse.

Another issue that increases tension where a relationship is breaking down is where one spouse, usually the wife will say that the husband has to leave the family home and he can get himself a flat somewhere. Under (j) above, it will be seen that the accommodation needs of either spouse must be taken into account, not just one of them. If the man in the above example has children, he is quite entitled to argue that if he has to have any future relationship with his children, he needs to be able to look after them and have arrangements in place to provide for their accommodation as well as his own accommodation and this will mean that he needs accommodation appropriate to look after his children and look after them overnight.

In my experience, bad conduct of one of the parties tends to get glossed over in family law proceedings. If it is relevant to the justice of the decision the court has to make, then it should not be ignored.

This is extremely wide but at least it gives you an idea what the court can take into account before granting a divorce.

Many people believe that the court is no longer interested in the reasons why a marriage broke down. In other words, they do not attribute blame. As you can see under (i) above, the conduct of the spouses can be very relevant. Under (d) above, the length of the marriage is very relevant and is particularly so in cases where the marriage was short lived. An argument can be made under (b) above that if one spouse has not worked for many years then it can be argued they have an obligation and a responsibility to perhaps look for employment in order to ease the financial burden on the other spouse.

Another issue that increases tension where a relationship is breaking down is where one spouse, usually the wife will say that the husband has to leave the family home and he can get himself a flat somewhere. Under (j) above, it will be seen that the accommodation needs of either spouse must be taken into account, not just one of them. If the man in the above example has children, he is quite entitled to argue that if he has to have any future relationship with his children, he needs to be able to look after them and have arrangements in place to provide for their accommodation as well as his own accommodation and this will mean that he needs accommodation appropriate to look after his children and look after them overnight.

In my experience, bad conduct of one of the parties tends to get glossed over in family law proceedings. If it is relevant to the justice of the decision the court has to make, then it should not be ignored.

Kevin Brophy
Brophy Solicitors

Barring Order Applications

I remember when I did one of my first barring order applications – I thought it was last September but when I checked it out, it was over 25 years ago. Goodness how time flies.

It was one of those cases where I knew I was going to lose. My client was not arguing that he had not been violent to his wife. His argument was that she had been just as violent to him and that she had told him that she wanted him out and he would never get back into the house again because she was getting a barring order against him. I remember that the wife gave her evidence very honestly and openly and her application for a barring order was refused because the judge accepted my argument that a barring order was not a substitute for a divorce. I said that if the main purpose of the application was to remove the husband permanently from the house, then a barring order should not be granted particularly in circumstances where both sides accepted that there was mutual violence between them on a fairly regular basis.

I remember the judge at the time saying that the barring order is not intended to be an Irish divorce.

I used that argument on a number of occasions over the following few years but I have not used the argument for many years now and I have not heard of any other lawyer using the argument. It now seems to be quite accepted that a barring order is a sort of Irish divorce.

The original purpose of barring orders was to allow a breathing space. The purpose was to enable the two parties stand back in a calmer atmosphere and see if they could work out their differences and perhaps attend counselling or get some other form of third party help. I cannot recall over many years, any judge suggesting that the parties should see if they could resolve their differences in this manner as part of a barring order application.

This is all the more surprising when you consider the emphasis placed on the role of the family in our Constitution. So there you have it. You don’t have to wait four years to get a divorce, you can get a barring order this afternoon.

Kevin Brophy 

Family Law Update - 9th March 2012

When I say to people that I do a lot of family law work, invariably one of the questions I get asked is what in my experience is the biggest single cause of marital breakup and disharmony. Without any doubt I can say that the biggest single cause is the breakdown in trust that can occur between two people living together over several years.

This was really brought home to me last week when I met a client who told me that his marriage had got into difficulties because his wife discovered a substantial number of letters from creditors, which he had kept hidden from her. The fact that large sums of money was due was bad enough for his wife but it was mainly the fact that he had kept it all hidden from her and then hadn’t dealt with the problem. She confronted him and they agreed a course of action, which meant that he had to contact various creditors and deal with the various debts that had been created. Unfortunately he did not contact them and did not deal with them.

So the problem was first of all he hid away letters demanding money and then when this was discovered, he agreed to follow up on various items and then did not do so.

By the time clients come to me, the difficulties are almost always irretrievable.

The fundamental point in all of this is that if you have problems, the first thing you have to do is confront them. Then you have to tell your partner that you will deal with the problem but then, most critical of all, you have to actually deal with them. Confronting the problem and saying you will deal with them are perhaps the easy part – you then have to pick up the phone or write the letter and actually deal with the problem. This can be extraordinarily difficult but if it doesn’t happen, the consequences can be…. well, I don’t have to spell it out.

Kevin Brophy

09.03.12

I WANT A DIVORCE BUT I CANNOT FIND MY WIFE!

A client made a consultation a few months ago to enquire about making an application for a Divorce and given that we specialise in Family Law there did not appear to be anything unusual about this at the outset. And so his story goes as follows:  my client was married in 2004. His wife is originally from Latvia. They separated in early 2006 after his wife discovered my client was having an affair.

My client ended up in a new relationship with this third party and subsequently had a child together. Understandably his wife moved out of the family home but remained in Ireland until early 2011 when she then left to return to Latvia. My client now wants to obtain a Divorce and marry his new partner but unfortunately he has no address for his wife. We contacted our private investigators and through a series a investigations involving visa cards, PPS numbers and even facebook we discovered that she was most certainly living in Latvia but we are still unsure of her exact address!

This of course is a huge problem for our client, as all legal proceedings must be served directly on his wife. However there is an exception to this rule that fall under Order 10 of the Superior Court Rules.

Save where otherwise provided by statute or by Rules of Court, service of a document shall be effected upon a person in the State by delivering to that person a copy thereof or by leaving the copy for that person at his or her last or most usual place of abode, or at his or her office, shop, factory, home or place of business with that person's husband or wife, as the case may be or with a child or other relative (apparently residing with that person) of that person or of his wife or her husband as the case may be, or with any agent, clerk, servant or employee of that person, or with the person in charge of the house or premises wherein that person usually resides, provided that the person (other than the person upon whom service is to be effected) with whom the copy is left is not under the age of sixteen years and is not the person instituting the proceedings

14. (1) Wherever the Court is satisfied upon ex parte application made in that behalf, that, for good cause shown, service of a document cannot be effected in a manner or in any manner prescribed by these Rules, it may make an order for substituted or other service or for the substitution for service of notice by advertisement or otherwise. Particulars of such order shall be endorsed on the original and each copy of the document to be served.
(2) Where the Court is satisfied that any particular mode of service prescribed is at any time not then available, it may by order in writing direct that the service of documents or of any particular class of documents be effected in such other manner as it thinks proper. Such direction shall be retained by the Clerk and shall remain in force until the said mode of service is again available or until the direction is revoked by the Court.
15. The Court may, if it sees fit so to do, deem the service of any document actually effected in any proceedings, even though not effected in a manner prescribed by these Rules, to be good and effected service.

This allows an application to be made to the courts for substituted service of legal proceedings. We explained the situation in detail to the judge, showed the judge proof that we knew his wife was living in Latvia but we were unable to find an exact address. We then applied to serve proceedings on her by way of advertisement in two Latvian national papers. The judge allowed us to serve through advertisement and we were eventually able to obtain a Divorce for our client.

It is important to realise that a Judge must be absolutely satisfied that the respondent (the person receiving the legal proceedings) cannot be located and that every possible effort has been made to find him/him.