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

• Author: Aoife Lynch
• Pages: 23-33

Cork Online Law R eview 2006 3

Lynch, Around th e World in 80 Days: from

the Altar to the Co urtroom

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AROUND THE WORLD IN 80 DAYS: FROM THE ALTAR TO THE

COURTROOM

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

notes:

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1 Browne D., “Recen t Developments in the Law Gover ning the Recognition of Foreign

Divorces”, [2002] 4 IJFL 8.

2 [1896] 1 IR 603

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.”