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