M.H. v G.H.

• Jurisdiction: Ireland
• Judge: O”Donnell J.,Mr. Justice Clarke,Ms. Justice Dunne
• Judgment Date: 26 February 2015
• Neutral Citation: [2015] IESC 7
• Court: Supreme Court
• Docket Number: [S.C. No. 8 of 2010],Appeal No: 8/2010
• Date: 26 February 2015

[2015] IESC 7

THE SUPREME COURT

Denham C.J., Hardiman J., O”Donnell J., Clarke J., Dunne J.

Appeal No: 8/2010

IN THE MATTER OF SECTION 38 OF THE COURTS OF JUSTICE ACT 1936

AND

IN THE MATTER OF A CASE STATED TO THE SUPREME COURT

Between/

M H

Applicant/Appellant

And

G H

Respondent

And

The Attorney General

Notice Party

Family – Marriage – Divorce – Jurisdiction –English divorce – Recognition of–Family Law (Divorce) Act 1996

Facts: The appellant was married to the respondent. Following allegations of domestic violence, the appellant moved to England and was granted a divorce. The appellant moved back to reside in the state and sought an order that the English divorce was not valid and applied for a divorce in Ireland. This was refused by the Circuit Court, and the High Court had referred a number of questions to the Supreme Court due to conflicting authority on the relevant law.

Held by Dunne J, Clarke J concurring, that resolving the first question would determine the need to answer the second and third question. Having considered the applicable authorities and the facts of the case, Dunne J stated that there was a need for a uniform approach for the recognition of foreign divorce decrees. Having decided that the State did not recognise a foreign divorce where neither party was domiciled in that foreign country but one party was resident, Dunne J stated that questions two and three did not require an answer.

McG v W [2000] 1 IR 96 doubted.

O”Donnell J.

Judgment delivered on the 3rd of February, 2015, by O”Donnell J.

Introduction

1 I have had the considerable advantage of reading the judgment delivered by Ms Justice Dunne in this matter and I gratefully adopt both her statement of the facts in this case, and outline of the applicable law. While I acknowledge that this is a complex issue upon which judges in this jurisdiction and others have taken different views, I have reluctantly come to a different conclusion to Dunne J. for reasons which I hope to make clear. This is a finely balanced and issue and I fully recognise the force of the arguments, and the good sense, contained in the judgments of my colleagues, and the practical merits of the result on which the majority of the Court is agreed. I have given some thought to whether there is any advantage in expressing a contrary view. I have come to the conclusion that since we are all agreed that it is highly desirable that the matter should be addressed in legislation, there is some merit in expressing my views on an area which is both a difficult area of law and the source of considerable difficulty and uncertainty for those unfortunate enough to find their lives affected by it.

2 There are perhaps three points upon which I would respectfully differ in my analysis of the law from the approach taken in the majority judgment. First: I do not agree that s. 5 of the Domicile and Recognition of Foreign Divorces Act 1986 (‘the 1986 Act’) fixes public policy for the purposes of recognising (or refusing to recognise) a foreign divorce obtained prior to 1986; second, it follows that I consider that to adopt a rule of recognition of foreign divorces granted on the basis of habitual residence, would not conflict with present public policy; and, third: I do not agree that an inconsistency between the jurisdictional grounds for the grant of divorce, and the jurisdictional basis for recognising foreign divorces, is not a reason for modifying the common law rule. Instead, I consider it is one powerful reason to consider adjusting our rule of recognition, and indeed was so recognised by this Court in J.W. v. J.W. [1993] 2 I.R. 476. I consider that the law as articulated by this Court in that case is that recognition of foreign divorces, at least those granted prior to 1986, is a matter of common law, which is not immutable and is to be determined by the courts in the light of present public policy. In applying that test, I would, for reasons I will elaborate on shortly, give less weight to the provisions of s. 5 of the 1986 Act, and greater weight to the provisions of Family Law (Divorce) Act 1996 (‘the 1996 Act’) which set out the grounds upon which Irish courts are now empowered to grant divorces based on residence as well as domicile and to Council Regulation (EC) No. 2201/2003 of 27 November 2003(‘Brussels II bis )repealing and extending Regulation (EC) No 1347/2000 so that Ireland now recognises divorces on the basis of habitual residence (as well as domicile and other jurisdictional grounds).

3 Since at least the conflicting High Court decisions in G.McG. v. D.W. [2000] 1 I.R. 96 (recognition on basis of residence as well as domicile) and M.E.C. v. J.A.C. [2001] 2 I.R. 399 (recognition only on basis of domicile) there has been confusion as to the grounds of recognition of pre 1986 foreign divorces in Irish law, which this case must resolve. In arguing for a rule of recognition based on the domicile of either party to the marriage, the respondent and notice party both seek to apply the test set out in the 1986 Act for post 1986 divorces (as indeed was the consequence of the decision of the majority of the Supreme Court in J.W. v. J.W.) to pre 1986 divorces. This however has the consequence of extending the range of the domicile recognition rule. At the level of principle, I see no benefit in that. It is clear to me that the policy of recognising only domicile based divorces has no intrinsic logic or merit and is inconsistent both with the basis upon which Irish courts now themselves grant decrees of divorce and since 2001, have recognised divorces obtained in other member states of the European Union (which must be the majority of divorces which the Irish courts are asked to recognise and enforce). Continued adherence to a domicile based recognition system for post 1986 divorces in non Brussels II bis countries can only increase the number of limping marriages. The merit in the rule of recognition on the basis of domicile is certainty and predictability that a clear rule provides and the possibility (impossible to assess and perhaps improbable in the light of the considerable uncertainty attending this area) that individuals may have arranged their affairs and acted on the basis that such a rule of recognition would be applied. I accept that these are considerations of some weight but they do not point decisively to one outcome: the fact is that the present Irish law on recognition of foreign divorces is anything but certain, and will not be uniform whatever the outcome of this case.

4 The 20th century has seen very considerable social change, not least in Ireland in relation to the status and importance of marriage, and the availability and acceptability of divorce. The same period has seen greatly increased international mobility. Every time there is a gap between the law in one country and another, and in particular the jurisdictional basis for the grant of divorce in one country and the rule of recognition in another, there is a risk, indeed almost an inevitability, of what the case law describes, correctly, as the scandal of limping marriages, the fact that the marital status of persons would be different depending on location. A marriage considered dissolved in one jurisdiction may be considered subsisting in another. When, as often happens, divorce is followed by subsequent remarriage (and possible subsequent divorce) considerable complications ensue. In theory if one jurisdiction (in this case Ireland) does not recognise the original divorce, then logic compels it to consider any subsequent remarriage as bigamous (which is both a crime and for good measure an extra territorial offence) and adulterous. These are heavy burdens to impose upon real people already struggling with the human cost of marital breakdown. Some element of this is unavoidable, unless all countries recognise divorces granted by every other country, and that is not possible or necessarily desirable. But any sensible and humane legal system seeks to minimise the area for difference and thus the number of limping marriages. Most countries readily recognise divorces granted on a jurisdictional basis which the recognising country itself claims, and also allows a certain margin of appreciation, for local differences. If the jurisdictional basis is not fundamentally at odds with the values of the recognising country, the desirability of avoiding limping marriage, and a commendable unwillingness to insist that other countries adopt rules identical to those of the recognising country, will encourage recognition. Here however, the position is that the rule of recognition argued for by the respondent and notice party puts Ireland at odds with the jurisdictional basis favoured by most developed countries for the grant of divorce (and moreover a jurisdictional basis which Ireland itself applies) and thus creates continuing opportunity for limping marriages. While lawyers may find it possible to conceive of marriage as valid in one jurisdiction but not existing in another, and can conceive of ways sometimes costly and time consuming, in which that decision can be ameliorated or possibly regularised, this exacts a high price in human terms. I do not think it is easy in real terms to live schizophrenic existence on a matter as fundamental to one”s own sense of oneself as marital and family status. The problems created are real and difficult but are individual, isolated and private. For whatever reason there has been little legislative change despite calls for such change from many quarters. Instead, cases tend to arise on a case by case basis in litigation, and the courts both in this jurisdiction and elsewhere have shown ingenuity and some subtlety in attempting to ensure a measure of flexibility and adaptability in the...