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

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