Around The World In 80 Days: From The Altar To The Courtroom

AuthorAoife Lynch
Cork Online Law R eview 2006 3
Lynch, Around th e World in 80 Days: from
the Altar to the Co urtroom
The Implications of Foreign Divorce
Aoife Lynch
This family law essay examines the implications of foreign divorce in
different jurisdictions. A history of this issue precedes in-depth analysis of
the topic. The author discusses the topic utilising references from common
law to Irish, English and European case law, including judgments to
facilitate her points effectively. This article is also supplemented by the
relevant legislative (Brussels II Convention) and constitutional (Article
41.3.3) instruments that surround the issue.
This is an extremely contemporary subject, accessorized with
contemporary references (as up to date as 2005). The author has examined
the law in this area from how it did stand to how it does stand. It is hoped
that this essay will be valuable to anyone dealing with the divorce topic, be it
in a family or constitutional law sphere. Winner of the Southern Law
Association essay competition.
Gone are the days when we could state with certainty the grounds on
which a foreign divorce would be recognised in this jurisdiction.1
Sinclair v. Sinclair2 (the locus classicus on the recognition of foreign
divorce) as well as the case of Le Mesurier v. Le Mesurier3 postulated the old
common law rule that divorces should be recognised here if granted in the
jurisdiction where both husband and wife were domiciled at the date divorce
proceedings were initiated.
This is a classic conflict of laws issue. While policy requires us to
recognise marriages that take place in other jurisdictions (as we expect them
to recognise those which take place here) given the pedestal upon which the
family based upon marriage is placed within the Constitution,4 along with
Catholic values dominating Irish society for so long, decisions as to the
termination of marriages in other jurisdictions are less authoritative.
Inevitably, this was to affect the way in which the Courts treated the issue of
foreign divorce. While divorce a mensa et thoro was available here in the form
of judicial separation, divorce a vinculo was only available abroad. As Binchy
1 Browne D., “Recen t Developments in the Law Gover ning the Recognition of Foreign
Divorces”, [2002] 4 IJFL 8.
3 [1895]
4 Under Article 41.1 .2 the State “ guarantees to prote ct the family” and under Article 41 .1.1
states the family to be a “moral institution possessin g inalienable and imprescriptibly rights
antecedent and su perior to all positive law.”

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