Appeal No: 8/2010

IpsofactoJ.com: International Cases [2015] Part 2 Case 11 [SCIre]


SUPREME COURT OF IRELAND

Coram

M.H.

- vs -

G.H.

Denham CJ

Hardiman J

O'Donnell J

Clarke J

Dunne J

3 FEBRUARY 2015


Judgment

Justice Clarke

1. Introduction

  1. I write this brief concurring judgment for the purposes of setting out the reasons why I agree with the conclusions reached on the issue in this case by Dunne J. as opposed to those proposed by O'Donnell J. I also write this judgment for the purposes of setting out some general observations on what I see to be one of the underlying difficulties which this case throws up.

  2. In addition to the general problems caused for parties to foreign divorces by the complicated and arguably uncertain state of certain aspects of the relevant law (which Dunne J. has fully explored in her judgment), this case also seems to me to raise some questions about the extent to which significant change to the law can or should come about by an evolution of the common law. It is to that question that I first turn.

  3. 2. The Development of the Common Law

  4. Until relatively recent times the law concerning the recognition of foreign divorces in Ireland was to be found in common law principles. In more recent times other sources of law have come to have a significant importance in that area. There was, of course, the constitutional issues which were determined by this Court in J.W. v J.W. and the Attorney General [1993] 2 I.R. 476. There has also been statutory intervention and European legislation.

  5. But the divorce, the recognition of which is at issue in this case, certainly predates the national and European legislative interventions which currently influence much of the law on the recognition of foreign divorces in this jurisdiction. The position in respect of constitutional influence is, however, somewhat different. While it is the case that the divorce with which this appeal is concerned predates the decision of this Court in J.W., nonetheless that decision is, of its nature, retrospective in effect.

  6. It is, indeed, the potentially retrospective nature of developments in relevant jurisprudence on which I wish to touch. There is a sense in which any development in the common law is potentially retrospective. The court, in declaring the common law when a case comes to trial, is thereby applying the law as so declared to events which occurred, by definition, before the case came to trial. Thus, any evolution in common law principles which are determined as a result of a case heard today necessarily involves applying those principles to facts which occurred before that very evolution.

  7. Much of the reticence which has been expressed in this jurisdiction concerning the over-ambitious change of the common law by judicial decision has been placed in the context of a desire not to overstep the separation of powers by permitting the courts to slip into what might properly be regarded as the constitutional legislative function of the Oireachtas (see most recently the judgments of both Hardiman J. and myself in R. v An tArd Chláraitheoir [2014] IESC 60 which, while demonstrating some disagreement on questions of detail, both caution against an overbroad use of the evolution of the common law).

  8. In speaking of the proper constitutional role of the courts in affecting change to the law, in R. v An tArd Chláraitheoir, I said the following, at para. 2.5:-

  9. However, it is clear that the role of the courts in that process, while important, is limited. Short of the existing law being found to be in breach of the Constitution, the only proper role of the courts is to play their appropriate part in the evolution of the common law in its application to new conditions and circumstances or to interpret legislation. Even where it is clear that the existing law is no longer fit for purpose it may well be that the only solution lies in legislation. This will particularly be so where any solution to identified problems requires significant policy choices and detailed provisions beyond the scope of the legitimate role of the courts.

  10. Hardiman J. expressly agreed with that passage in his judgment in the same case. The passage draws a distinction between the proper evolution of the common law where the same fundamental principles are required to be applied, perhaps in quite a different way, because of new circumstances and conditions, on the one hand, and changes which require policy choices and detailed provisions, on the other.

  11. However, in addition to the constitutional restriction there seems to me to be an important practical reason for exercising the same caution. It is, of course, the case that the starting point has to be to acknowledge the need, as noted both by Hardiman J. and myself in R. v An tArd Chláraitheoir, to apply old principles to new circumstances and also to acknowledge that this may result in something of an evolution of the common law.

  12. There are both disadvantages and advantages as and between the evolution of the common law, on the one hand, and legislation, on the other, as a means of keeping abreast with necessary developments. The problem with legislation is that it can become outdated but, short of amending legislation, no means for its change exists even if it becomes fairly clear that it is no longer fit for purpose. On the other hand the common law is quite adaptable to permitting the application of old principles to new circumstances in a way which is much more likely to be fit for purpose.

  13. Against that, common law evolution can suffer from a problem of timing. In this respect legislation (whether to amend existing legislation or change the common law) has the advantage. The precise time at which a legislative change comes into effect is easily determined. It is either the day on which the relevant legislative measure is finally passed by the Oireachtas or some later day specified in secondary legislation in accordance with the terms of the relevant measure. In most cases it is fairly clear as to whether, and if so to what extent, the legislation is to have any retrospective effect. Even where not expressly specified there are well established principles of interpretation which can help to answer the question of whether any legislative amendment (outside the field of the creation of criminal offences where retrospection is constitutionally prohibited) may be regarded as having some retrospective effect. Thus, in the case of legislative change, the extent, if any, to which the change concerned can affect rights, obligations or liabilities (deriving from a point in time before the legislation came into force) is normally fairly clear. The problem with an evolution in the common law is that it necessarily involves applying the newly evolved interpretation of the law to facts which occurred at a time when that new interpretation had not been determined. There is, thereby, inevitably some risk of unfairness.

  14. Even where legislation is clearly intended to be retrospective to a greater or lesser extent it is likely that one of the considerations which will have led to a decision to enact such retrospective legislation which will involved an assessment of the consequences for those whose rights and obligations might be said to be retrospectively affected by the change in the law thus affected. At least to date, common law changes deriving from an evolution in the jurisprudence inevitably affect events which were the subject of the very case in which the relevant evolution occurred. It seems to me to follow that an added reason why the courts should be slow to engage in overly radical changes in the common law must be to guard against the potential unfairness which might arise in the necessarily retrospective effect of such a decision.

  15. It must, of course, be acknowledged that one of the issues which arises in this case, at least indirectly, stems from the decision of this Court in J.W. which had the effect of the then existing law of dependent domicile being declared to be unconstitutional. As a consequence this Court determined that the law on the recognition of foreign divorces also had to change so as to allow for the recognition of a divorce where one but not both of the parties was domiciled in the relevant jurisdiction. Obviously as long as the law of dependent domicile continued to be recognised there was, in practise, no legal possibility of the parties to a marriage having a different domicile. To that extent the constitutional decision by this Court in J.W. was necessarily retrospective in the sense that it applied to the recognition of divorces which were decreed long before the decision of this Court was handed down. That is a consequence of the constitutional jurisprudence in this jurisdiction which treats unconstitutional laws as never having been validly enacted (if they post-date the coming into force of Bunreacht na hÉireann) or as not having been carried forward (if they be pre-1937 legislation or the common law as it existed at that time). That is a complicating factor to which it will be necessary to return in due course. However, against the background of those general observations, I now turn to a discussion of the core issue which arises in this case.

  16. 3. Discussion

  17. First, I agree with the analysis of the common law in Ireland as set out by Dunne J. in her judgment. I am satisfied that, prior to developments over the last 30 years or so, the position as generally understood was that a foreign divorce would only be recognised in Ireland if both parties were domiciled in the jurisdiction granting the divorce. Of course, at that time, the doctrine of dependent domicile was perceived to remain as part of our law so that the test was, in practise, met if the husband was held to be domiciled in the relevant jurisdiction.

  18. It seems to me that the real issue which this Court has to address is as to whether it should now be taken that the common law position, as it was understood to apply at the time but subject, for reasons to which I will turn, to constitutionally mandated change, should be taken no longer to apply to divorces which were decreed at the relevant time.

  19. I note, as O'Donnell J. notes, that this Court, in J.W., did acknowledge that the common law was not immutable and also suggested that the recognition of foreign divorces should be based on the law of recognition as it is at the time when the question of recognition comes up rather than as it might have been at the time when the relevant divorce was decreed.

  20. Subject to the observations which I have made earlier in this judgment, I have no difficulty at all with the first of those propositions. However, I am somewhat concerned about whether the second proposition can be said clearly to apply in all circumstances. It is, in that context, important to note the way in which a legislative change would operate in this context. It would, of course, be open to the Oireachtas to consider whether it was appropriate to legislate for the recognition of foreign divorces in a way which retrospectively altered the status of individuals. Persons who considered themselves to be divorced might, as a result, no longer be considered to be divorced and vice versa. There could be adverse consequences for such persons and, indeed, third parties whose status might, in turn, be affected. But it might be felt that whatever change was being brought about was, on balance, in the public interest, which interest might be considered to be better achieved by some degree of retrospection even though there might be some such difficulties thereby created.

  21. As noted earlier the difficulty with a significant alteration in the common law brought about by judicial decision is that it would, at least on the current state of the jurisprudence in that regard, necessarily be retrospective. Even if there were sound reasons of policy as to why the existing common law position was outdated and ought be changed, the very fact that a change by judicial decision can have adverse retrospective effects can provide a very good reason why a change, though desirable, should be left to legislation. Whether it might ever be possible to give effect, by judicial decision, to a change in the common law without same being retrospective is an issue which was not debated in this case and on which I would, therefore, not wish to express any view.

  22. Where a change involves the application of existing principles to new circumstances then the difficulties with retrospection may be significantly diminished. A person may be faced with considering their legal rights and obligations in circumstances where the law applying to the relevant issues is the common law and where the case law might be said to be somewhat outdated by virtue of having evolved when circumstances were different. Such a person will necessarily have to seek to predict how that law might be interpreted in the light of modern and changed circumstances. Thus the prospect of a reinterpretation of the law in the light of changed circumstances would have to be taken into account.

  23. Where, however, the change under consideration is one which might be said to be significant and involve new or adjusted principles, then the problem of retrospection looms larger and affords, in my view, a particular reason for significant care being exercised. One of the important policy considerations which would arise in any significant legislative change is the extent, if any, to which the change should be retrospective. In many cases the disadvantages of retrospection may be such that it is hardly considered. However, where, at least to some extent, consideration is being given to change which might involve some degree of retrospection then important policy choices can arise. If one assumes, for the sake of argument, that there is consensus that the existing law is outdated or otherwise inappropriate, it does not necessarily follow that changing it with any retrospective effect is desirable. A detailed assessment of the advantages and disadvantages would require to be carried out and may well involve policy choices. Furthermore, it might, at least in some cases, be necessary to put in place detailed measures to govern the extent of any retrospection precisely because a blanket retrospective change would be considered to have disproportionate adverse effects. Thus a radical change in the common law in a manner which is necessarily retrospective may require the very sort of policy choices and issues of detailed implementation which are more appropriate to legislation. This will particularly be so where the retrospective nature of the change would affect events which occurred a very considerable period of time in the past and where the change could have significant effects on the rights and obligations of individuals. Likewise, such problems are exacerbated where the relevant law, at the time when the events under consideration occurred, appeared to be relatively well settled.

  24. In this case the court is, in effect, being asked to declare that the common law, relevant to the time when the divorce which is the subject of these proceedings was decreed, is very different, so far as recognition of foreign divorces in Ireland is concerned, to that which would have been considered to be the case at the time. It is a radical change that is proposed and one which could have a very significant and significantly retrospective effect. It is, in my view, the sort of change which should properly be brought about, if it is considered desirable, by legislation. Limping marriages do create problems. But so also do springing divorces. Legislation is the answer.

  25. Such legislation may very well be desirable for the reasons addressed in the other judgments in this case. The current state of the law is potentially very unsatisfactory. However, one of the factors which any such legislation would have to take into account is the question of retrospection. That involves important policy considerations requiring detailed consideration and, perhaps, detailed measures. That is exactly the sort of change which, as I suggested in R. v An tArd Chláraitheoir, is much more suitable to legislation. For those reasons I would not be disposed to embark on the exercise of reinterpreting the common law so as to make it applicable to events which occurred a very long time ago in a way which was significantly different to the way in which that law would have been interpreted at the time in question.

  26. Finally, I propose to return to the constitutional issue. As O'Donnell J. points out, an aspect of the determination of this Court in J.W. had the effect of bringing about retrospective change. There certainly were marriages which, prior to the decision of this Court in that case, might have been considered to subsist in Irish law but which would, as a result of that decision, have been, retrospectively as it were, considered to have been dissolved. The issue of retrospectivity is not, of course, made any easier by the fact that the issue which gives rise to it is one of the application of the Constitution rather than one involving of the common law. But it may be that the adverse consequences of retrospection are a necessary, if undesirable, consequence of the constitutional regime. If a law is unconstitutional it must be declared so even if there may be some unavoidable adverse consequences. For the purposes of this case I will confine myself to expressing the view that the fact that J.W. effected, in practise, a retrospective change in the applicable law so far as the recognition of foreign divorces in Ireland was concerned does not change my view that it would be inappropriate to bring about another significant retrospective change in that law by means of a reinterpretation in quite a significant way of the relevant common law principles.

  27. I would add just one more observation. Further complications will necessarily arise from any law which is changed with retrospective effect. This applies whether the change is brought about by legislation, by a reinterpretation of the common law or as a result of a constitutional decision such as J.W. One of the issues which arises concerns rights and obligations which may already have been determined by the courts prior to the change concerned. What would be the position in respect of a divorce whose recognition in Ireland had been the subject of a judicial determination based on the "old" view of the common law and which, as a result of such a determination, was found not to be recognised? Does it suddenly become recognised now because the common law has been reinterpreted, or does it, as a result of the fact that it has already been the subject of a judicial determination, remain unrecognised even though another divorce which occurred in exactly the same circumstances would now be recognised? These are difficult questions. However, if a retrospective change is brought about by legislation then it might be expected that some attempt would be made to deal with questions of that type. Indeed, it might be envisaged that a point could be reached where the difficulty in dealing with such issues might be such as to lead to the view being taken that the legislation should not be retrospective at all. While it may be, of course, that similar problems arise in the context of a constitutional determination such as J.W., such problems provide, in my view, a further reason for exercising significant caution about a reinterpretation of the common law which can affect events which occurred a very long time ago and which may have significant unintended consequences.

  28. 4. Conclusions

  29. For those reasons I agree with the analysis of the difficult issues which arise in this case as set out in the judgment of Dunne J. I have come to the view that to attempt to retrospectively reinterpret the common law, at the remove of a significant period in time, so as to effect the recognition of a foreign divorce in a way which is very different to that which would have been the case at the time when the divorce in question was decreed, is not justified. Whatever the problems with the existing position and whatever the merits of any proposed solution the degree of retrospection involved raises the risk of unintended consequences and involves the kind of policy questions and issues of detail which are more appropriate for legislation.

  30. I would, therefore, like Dunne J., answer the first question posed to the court "no". Having regard to that answer I am also of the view that it is not necessary to answer the second and third questions.

  31. Justice Dunne

    Introduction

  32. On the 24th September, 1966 the applicant/appellant (“the appellant”) was married to the respondent in Ennis, County Clare. There are six children of the marriage, the youngest of whom was born in 1974. The parties resided at the family home in County Clare on a farm of some forty acres. Issues arose in the marriage between the appellant and the respondent and in July 1978 the appellant left the respondent and the family home and went to reside in England. It was alleged by the appellant that she left because the respondent had been violent towards her. In October 1979 she returned to the family home and there was an attempt at reconciliation between the parties. The appellant alleges that she was subjected again to violence by the respondent; she left the family home taking the youngest child with her and she went to reside in London. The respondent denies the allegations of violence made against him.

  33. On the 4th February, 1981 and while the appellant was resident in England she applied to Willesden County Court for a decree of divorce. A decree of divorce nisi was made on the 22nd January, 1982 and the decree of divorce nisi was made final and absolute on the 14th July, 1982. It appears from the decree absolute made on the 14th July, 1982 that no financial relief or provision was granted by the court in making that order.

  34. The appellant returned to Ireland in 2003 and worked as a carer. She subsequently moved back to Clare and on the 28th November, 2005 a family law civil bill was issued on her behalf seeking inter alia a declaration pursuant to s. 29(1)(c) of the Family Law Act 1995 that the decree of divorce granted by Willesden County Court in 1982 in respect of the marriage of the appellant and the respondent is not entitled to recognition in the State. She also sought a declaration that the marriage between the appellant and the respondent subsisted at the date of the hearing of the proceedings. In addition she sought a decree of divorce in respect of the marriage of the appellant and the respondent pursuant to the provisions of s. 5(1) of the Family Law (Divorce) Act 1996 together with ancillary relief. A defence and counterclaim was duly filed and the proceedings came on for hearing before the Circuit Court on the 12th October, 2007. In the course of the hearing before the Circuit Court reference was made to a number of conflicting decisions of the High Court in the cases of McG. v W (No. 1) [2000] 1 I.R. 96, M.E.C. v J.A.C. [2001] 2 I.R. 399 and D.T. v F.L. [2002] 2 I.L.R.M. 152. The learned Circuit Court judge followed the decision in McG. v W and held that the English decree of divorce was entitled to recognition in this jurisdiction on the basis that the appellant had been resident in England for a year at the time of the institution of the English divorce proceedings. Accordingly the Circuit Court made a declaration that the decree of divorce made at Willesden County Court was a valid divorce in this jurisdiction and dismissed the appellant’s claim for a divorce.

  35. The appellant appealed that decision to the High Court and the Attorney General was given notice of the proceedings pursuant to s. 29(4) of the Family Law Act 1995 by order of the High Court made on the 30th November, 2008.

  36. The appeal came on for hearing before the High Court (Edwards J.) on the 12th November, 2009. The appellant gave evidence and was cross-examined in relation to her residence and domicile at the time of the institution of the proceedings for divorce in Willesden County Court. The learned High Court judge made the following findings in the course of the hearing, namely, that the appellant was not domiciled in England either at the time of the institution of the proceedings for divorce or at the time of the grant of the decree absolute. He also found as a fact that she was resident in England for one year prior to the date of the proceedings.

  37. Given those findings of fact, it was accepted by the learned High Court judge that the English decree of divorce would not be entitled to recognition in this jurisdiction unless the State recognised the validity of a foreign divorce lawfully granted in a country where neither party to the marriage in question was domiciled at the date of the institution of the divorce proceedings but where one party was resident at that date. In view of the fact that there are conflicting High Court authorities on the applicable law, the learned High Court judge considered that the issue relating to the recognition of foreign divorces was properly raised in the proceedings and that an important question of law arose relating to that question. In all the circumstances he considered that it was appropriate that the opinion of the Supreme Court be sought before determining the appeal and accordingly an order was made referring this matter to the Supreme Court by way of consultative case stated seeking the opinion of the Supreme Court on the following questions:

  38. (1)

    Does the law of the State recognise the validity of a foreign divorce lawfully granted prior to the 2nd October, 1986 in a country where neither party to the marriage in question was domiciled at the date of the institution of the divorce proceedings but where one party was resident on that date?

    (2)

    If the answer to the first question is “Yes”, is it sufficient that the party resident in the country granting the divorce is resident for the period required by the law of that country to ground its divorce jurisdiction?

    (3)

    If the answer to second question is “No”, for what period must a party to the marriage in question have been resident in the country granting the divorce in order to entitle such a foreign divorce to recognition in the State?

    The relevant statute law

  39. The Domicile and Recognition of Foreign Divorces Act 1986 abolished the dependent domicile of a married woman. It is provided in s. 1 of the Act as follows:

  40. 1.

    (1)

    From the commencement of this Act the domicile of a married woman shall be an independent domicile and shall be determined by reference to the same factors as in the case of any other person capable of having an independent domicile and, accordingly, the rule of law whereby upon marriage a woman acquires the domicile of her husband and is during the subsistence of the marriage incapable of having any other domicile is hereby abolished.

    (2)

    This section applies to the parties to every marriage, irrespective of where and under what law the marriage takes place and irrespective of the domicile of the parties at the time of the marriage.

  41. Having provided for the abolition of a wife’s dependent domicile, s. 5 of the Act then went on to make provision in respect of the recognition of foreign divorces in the following terms:

  42. 5.

    (1)

    For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled.

    (2)

    In relation to a country which has in matters of divorce two or more systems applying in different territorial units, this section shall, without prejudice to subsection (3) of this section, have effect as if each territorial unit were a separate country.

    (3)

    A divorce granted in any of the following jurisdictions -

    (a)

    England and Wales,

    (b)

    Scotland,

    (c)

    Northern Ireland,

    (d)

    the Isle of Man,

    (e)

    the Channel Islands,

    shall be recognised if either spouse is domiciled in any of those jurisdictions.

    (4)

    In a case where neither spouse is domiciled in the State, a divorce shall be recognised if, although not granted in the country where either spouse is domiciled, it is recognised in the country or countries where the spouses are domiciled.

    (5)

    This section shall apply to a divorce granted after the commencement of this Act.

    (6)

    Nothing in this section shall affect a ground on which a court may refuse to recognise a divorce, other than such a ground related to the question whether a spouse is domiciled in a particular country, or whether the divorce is recognised in a country where a spouse is domiciled.

    (7)

    In this section –

    ‘divorce’ means divorce a vinculo matrimonii;

    ‘domiciled’ means domiciled at the date of the institution of the proceedings for divorce.

  43. As can be seen from the sections set out above, the provisions of the Act apply to a divorce granted after the commencement of the Act and not to a divorce which was granted prior to the commencement of the Act. 

  44. Recognition of foreign divorces prior to the 1986 Act

  45. The position in Ireland prior to the coming into force of Bunreacht na hÉireann was understood to be that a foreign divorce would be recognised by the courts of this country if both spouses were domiciled within the jurisdiction of the court granting the decree at the date of institution of the divorce proceedings. As the domicile of a wife was understood to be dependent upon that of her husband at that time, in practical terms, this meant that a divorce was recognised if granted by the courts of the country in which the husband was then domiciled. There was some uncertainty as to whether this position would continue following the introduction of Bunreacht na hÉireann which, of course, then contained a ban on divorce. This issue was considered in a number of cases notably, Mayo-Perrott v Mayo-Perrott [1958] I.R. 336, Bank of Ireland v Caffin [1971] I.R. 123, and Gaffney v Gaffney [1975] I.R. 133. A passage from the judgment of Walsh J. in the case of Gaffney v Gaffney at page 150 illustrates the position:

  46. Judicial dissolution of marriage was not available in any part of Ireland until 1939. In that year the courts of Northern Ireland were given power by statute to dissolve marriages. In this State no such judicial process is available. Notwithstanding the absence of this particular jurisdiction in Irish courts, it was a principle of the system of private international law recognised by the Irish courts that they would recognise decrees of dissolution of marriage granted by the courts of another country where the parties were domiciled at the time. Domicile was recognised and accepted as the foundation of the jurisdiction to dissolve marriage. In In re Lyons [1937] 72 I.L.T.R. 87 the Court of Appeal in Northern Ireland refused to recognise a decree of divorce granted in the United States because, at the time of the commencement of those proceedings which led to the dissolution of marriage, the parties were not domiciled within the jurisdiction of the court which pronounced the decree. In the course of his judgment in Mayo-Perrott v Mayo-Perrott [1958] I.R. 336, Kingsmill Moore J. stated the Irish law to have been that the recognition of foreign divorces in Irish courts depended upon establishing that the domicile of the parties was within the jurisdiction of the court pronouncing the decree. Recognition and application of this principle of private international law was part of the common law in Ireland and, like Kingsmill Moore J. in the Mayo-Perrott case and Mr. Justice Kenny in this case, I am satisfied that it is still part of our law. It follows, therefore, that the Courts here do not recognise decrees of dissolution of marriage pronounced by foreign courts unless the parties were domiciled within the jurisdiction of the foreign court in question. Insofar as the Courts of this country are concerned, the marriage remains as valid and as subsisting in this country as it would have been but for the intervention of the purported decree of dissolution.

  47. The matter was further considered by the Supreme Court in the case of T. v T. [1983] I.R. 29. That case was originally a case stated by the District Court to the High Court and was ultimately appealed to the Supreme Court. Henchy J. at page 33 noted:

  48. The net point is still the same. At the time of the divorce, was the husband’s domicile Irish or British? If it was British, the divorce qualifies for recognition in our Courts; if it was Irish, the divorce was given without jurisdiction and cannot be acted on here: see the decision of this Court in Gaffney v Gaffney.

  49. Thus it can be seen that by the early 1980s, the position in relation to the recognition of foreign divorces was understood to be firmly and solely based on the domicile of the parties concerned. 

  50. An era of change

  51. The decision of the Supreme Court in the case of K.D. (otherwise C) v M.C. [1985] I.R. 697 is of some interest. In that case it was suggested that the common law approach to the recognition of a foreign divorce, which was by that stage well established as being dependent upon the domicile of the parties, should be viewed as being not the only appropriate test to be applied and that an alternative test should be considered, namely whether there was a real and substantial connection in existence between the parties and the law of the country of the court granting the divorce. It was suggested that that test first identified in the decision of Indyka v Indyka [1969] 1 A.C. 33 should be applied in this jurisdiction. The Supreme Court rejected the suggestion that the Irish courts should adopt that test stating, inter alia, that since the evidence before the Court did not show a real and substantial connection between the parties and England where the divorce at issue had been granted that the Court would in those circumstances be deciding a point of law upon theoretical facts, something which the Court declined to do. An observation made by Finlay C.J. is of relevance. He stated at page 702 of the judgment as follows:

  52. It may well be, as was urged upon the Court, that anomalies exist in the law of domicile when applied to the recognition of foreign divorces. It may well be that this area of the law, the reform of which has been recommended by the Law Reform Commission, should receive statutory attention, but that is not a reason in itself for considering a test other than the well established test of domicile which was the only test put forward in the High Court and the only test which arises on the facts of this case.

  53. Finlay C.J. had made reference in the above passage to a recommendation by the Law Reform Commission in relation to the recognition of foreign divorces. The Law Reform Commission had published a report in 1985 on, inter alia, the recognition of foreign divorces. Its recommendations included the following:

  54. Where both spouses are habitually resident in the State at the date of the institution of the divorce proceedings, a foreign divorce obtained by them should not be recognised at all in this country.

  55. To a large extent, the focus of the Law Reform Commission was on the concept of habitual residence. Even in the case of the habitual residence of one of the spouses in a country where proceedings for divorce were instituted, its recommendation for recognition was dependent upon the other spouse submitting to that jurisdiction. I have previously set out a number of sections from the Domicile and Recognition of Foreign Divorces Act 1986 and as can be seen, the Oireachtas in enacting that legislation did not adopt the recommendations of the Law Reform Commission but rather chose to maintain the concept of recognition based on domicile.

  56. The abolition of dependent domicile of wives

  57. Prior to the enactment of the 1986 Act, there was some doubt cast by Walsh J. in the course of his judgment in the case of Gaffney on the concept of the dependent domicile of a wife. He noted at page 152 of the judgment:

  58. So far as the plaintiff was concerned, it was not suggested that her domicile during the subsistence of her marriage was different from that of her husband. The law has been that during the subsistence of a marriage the wife's domicile remains the same as, and changes with, that of her husband. For the purpose of this case it is proper to adopt this view, although it is possible that some day it may be challenged on constitutional grounds in a case where the wife has never physically left her domicile of origin while her deserting husband may have established a domicile in another jurisdiction.

  59. The tentative view expressed by Walsh J. in the case of Gaffney v Gaffney found further expression in the Law Reform Commission’s report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws which was published in 1983. It recommended that the domicile of dependency of married women should be abolished and, of course, this was subsequently brought about by the Domicile and Recognition of Foreign Divorces Act 1986 which, in addition, made express provision for the rule that a divorce shall be recognised if granted in a country where either spouse is domiciled as previously mentioned (see s. 5(1) of the 1986 Act).

  60. Developments following the 1986 Act

  61. The question of the dependent domicile of wives came to be considered again notwithstanding its abolition in the 1986 Act. Barr J. considered the matter in two decisions of the High Court (C.M. v T. M. [1987] I.R. 152 and C. M. v T. M. (No. 2) [1992] 2 I.R. 52). In the latter case, Barr J. at page 63 of his judgment stated:

  62. I would have no hesitation whatever in holding that the old rule was a relic of matrimonial female bondage which was swept away by principles of equality before the law and equal rights in marriage as between men and women which are enshrined in the Constitution – see in particular Article 40, ss. 1 and 3 and Article 41. It appears that the only possible argument against such a conclusion is that it might create some uncertainty for spouses and others who may have been affected by the rule in times past. It does not seem to me that that argument could possibly save an alleged rule of law which is patently unconstitutional and can be unjust and unreal in its application. ...

  63. The views of Barr J. to the effect that the common law rule in respect of the dependent domicile of wives did not survive the enactment of the Constitution came to be considered in the case of W. v W. [1993] 2 I.R. 476 by the Supreme Court. That was a case which was originally before the Circuit Court, having been the subject of an application by the plaintiff wife for a decree of judicial separation and ancillary orders. Part of the defence was a claim by the defendant husband that the marriage between him and the plaintiff was not valid because the wife had been married previously and had obtained a divorce in England from her first husband. He contended that at the time of the divorce, the plaintiff wife was domiciled in Ireland and that as such the divorce was not entitled to be recognised in this jurisdiction. The Circuit Court granted a decree of judicial separation and the defendant husband appealed to the High Court. In the High Court it was found on the evidence that if the plaintiff had an independent domicile, she had acquired a domicile of choice in England at the time of her first marriage. However, by the time she obtained the divorce in England she had formed the intention of marrying the defendant in these proceedings and of remaining in Ireland. On that basis, assuming there was an independent domicile she had resumed her domicile of origin in Ireland and consequently the divorce could not be recognised with the consequent effects on her marriage in this jurisdiction. Both parties asked the High Court to state a case for the opinion of the Supreme Court and one of those questions was as follows:

  64. Can the decision of Barr J. in C.M. v T.M. [1991] I.L.R.M. 268, that the rule of the dependent domicile of married women is unconstitutional be applied retrospectively so as to render void the marriage of the plaintiff to the defendant on the 7th May, 1973?

  65. The Supreme Court held, inter alia, that the common law rule of dependent domicile of a married woman ceased to be part of Irish law by virtue of Article 50 of the Constitution, being inconsistent with Article 40, s. 1 and did not survive the Constitution’s enactment. It was further held that the common law rule to be applied to the period prior to the 2nd October, 1986, is that a divorce will be recognised if granted by the court of a country in which either of the parties to the marriage was domiciled at the time of the proceedings for divorce. The majority judgment in that case was delivered by Blayney J. and it would be useful to quote a passage from his judgment in which he made two important observations at p. 505 of the judgment:

  66. But a new common law rule limiting the recognition of divorces to those granted in a country in which the husband was domiciled would not be consistent with the Constitution. As in the case of the dependent domicile rule, it would offend against Article 40, section 1. In order to avoid this, the rule would have to be extended further to include divorces granted in the country in which the wife was domiciled. I see no alternative to this. The old rule has to go because it is no longer appropriate to a situation where husband and wife have separate domiciles. Being a judge-made rule, it is for this Court to decide the form of the rule by which it should be replaced. I agree with Egan J. that the rule should be that our courts will recognise a divorce granted in a country in which either of the parties to the marriage was domiciled at the time of the proceedings.

    In my opinion, such recognition would be consistent with what the present policy of this Court should be. The Court may not leave out of account the provisions of the Domicile and Recognition of Foreign Divorces Act 1986, which, having abolished the rule as to the dependent domicile of a married woman, provided as follows in s. 5, sub-section 1: –

    For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled.

    While this provision applies only to divorces granted after the statute came into force on the 2nd October, 1986, it seems to me that it would be wholly consistent with the statute that this Court, as a matter of public policy, should independently modify the judge-made rule in order to do justice to the plaintiff. If the legislature considered it right that the statutory abolition of the dependent domicile rule should require the enactment of s. 5, sub-s. 1, it seems eminently reasonable that this Court, having decided that the dependent domicile rule did not survive the enactment of the Constitution, should also modify on similar lines the rule in regard to the recognition of foreign divorces in order to enable the plaintiff's divorce to be recognised.

  67. The two central points that emerge from that decision are of some importance in the overall context of this case, namely that a common law rule being judge-made law is not immutable and that insofar as it may be modified it should be modified having regard to public policy as may be discerned from relevant statute law or from constitutional amendments as may be appropriate.

  68. Counsel on behalf of the appellant in their written submissions referred to Hogan and Whyte in J.M. Kelly: The Irish Constitution (4th Ed.) at paragraph 7.6.125 in which the learned authors observed in relation to the judgment of Blayney J. as follows:

  69. While the majority decision may provoke unease among those who dislike the notion of judicial legislation – given the very nebulous distinction between such activity eschewed by the Supreme Court in cases like L. v L. and the more acceptable additional refinement of common law rules such as in the instant case – it does have the merit of introducing a uniform rule for the recognition of foreign divorces, so that one’s marital status is not affected one way or the other by the mere happenstance of the date of the foreign divorce.

  70. It may have been thought that the issue of recognition of foreign divorces had been resolved by the enactment of the Domicile and Recognition of Foreign Divorces Act in 1986 and by the subsequent decision in the case of W. v W. However, matters did not end there. “The next development was the Fifteenth Amendment to the Constitution Act 1995 which was approved by a Referendum held on the 24th November, 1995, which removed the ban on divorce.

  71. The next development was the amendment of the Constitution on the 24th November, 1995 which removed the ban on divorce. Subsequently the Family Law (Divorce) Act 1996 came into force on the 27th February, 1997. It is not necessary to set out the terms of the legislation or indeed the terms of the constitutional amendment but it is relevant to note the provisions of s. 39(1) of the 1996 Act which provides as follows:

  72. The court may grant a decree of divorce if, but only if, one of the following requirements is satisfied –

    (a)

    either of the spouses concerned was domiciled in the State on the date of the institution of the proceedings concerned,

    (b)

    either of the spouses was ordinarily resident in the State throughout the period of one year ending on that date.

  73. Accordingly it can be seen that the courts in this jurisdiction can now grant a divorce on the basis of either the domicile of either of the spouses or the residence of either of the spouses in the State for a period of one year at the date of the institution of the proceedings. Thus, the position then was, that having regard to the terms of the 1986 Act and bearing in mind the decision of the Supreme Court in the case of W. v W., a foreign divorce would be recognised if granted in a country where either of the spouses was domiciled at the date of institution of proceedings whereas in this jurisdiction, a divorce could be granted on the basis of either residence or domicile.

  74. Subsequent decisions on the recognition of foreign divorces

  75. The issue of the recognition of foreign divorces was again raised in the case of McG. v W. (No. 1) [2000] 1 I.R. 96 and in the subsequent decision in M.E.C. v J.A.C. [2001] 2 I.R. 399. The decision in McG v W. was then considered in the subsequent decision in the case of D.T. v F.L. [2002] 2 I.L.R.M. 152. There is a conflict between the decisions in McG v W. and M.E.C. v J.A.C. and it is the resolution of that conflict which is at the heart of the case stated herein. I now propose to consider those decisions in some detail.

  76. The circumstances in McG v W. are necessary to describe. In 1998, the petitioner sought a decree of nullity of his marriage to the respondent on the basis that he lacked capacity to marry at the time of his marriage because of a prior subsisting valid marriage to the notice party. The petitioner had married the notice party in 1967 and they separated in 1978. In 1983 the notice party entered into a new relationship in England with Mr. R. and she co-habited with him in England. In 1984, the petitioner issued divorce proceedings in England relying on the notice party’s residence there for one year prior to the date of issue of the divorce proceedings. It was never suggested that the notice party had been domiciled in England at that time. A decree absolute was made in February 1985 on foot of which the petitioner married the respondent on the 25th November, 1985 in London. The respondent was a British citizen, domiciled in England. Subsequently, the notice party also married Mr. R.

  77. At the hearing of the action the parties consented to the matter being dealt with as though it was an application pursuant to s. 29 of the Family Law Act 1995 which enables the Court to grant a declaration as to the recognition within the State of a foreign divorce.

  78. One of the issues in the background in that case was the fact that when the proceedings were before the Master of the High Court for the purpose of fixing the time and mode of trial and determining the questions to be tried in the proceedings, the Master refused to make the order and took the view that the English divorce was of no effect and that the parties had committed bigamy. He directed that papers be sent to the Director of Public Prosecutions and as a result, An Garda Síochána interviewed a number of people including the notice party.

  79. McGuinness J. was satisfied that there was no doubt as to the validity of the divorce in English law and equally that the marriages of the petitioner and respondent and of the notice party and Mr. R. were valid marriages in English law. The question was whether the marriage between the petitioner and the respondent would be recognised in this jurisdiction. As the 1986 Act was prospective in its application, McGuinness J. determined that the question at issue in the proceedings had to be determined in accordance with common law principles.

  80. McGuinness J. in the course of her judgment considered the developments in the law relating to divorce in this country, by the passing of the Fifteenth Amendment to the Constitution which permitted divorce and by the enactment of the Family Law (Divorce) Act 1996. She also considered case law in relation to the recognition of foreign divorces and the changes brought about by the 1986 Act and she laid considerable emphasis on the decision of the Supreme Court in W. v W. referred to above. She cited part of the passage from the judgment of Blayney J. at page 505 of the report which I have set out above and went on to say at page 106 of her judgment:

  81. It seems to me that in considering in the instant case ‘what the present policy of the court should be’ I ‘may not leave out of account’ the provisions of the Act of 1996, which is the current major statutory provision in regard to divorce. It does not seem to me that it would in reality be inconsistent with the Act of 1986 that this court ‘as a matter of public policy should independently modify the judge-made rule in order to do justice’ to the three parties in this case.

  82. McGuinness J. also referred to the decision in the case of K.D. (C) v M.C. [1985] I.R. 697 in which the Supreme Court refused to recognise an English divorce on the test of “real and substantial connection” as described in Indyka v Indyka [1969] 1 A.C. 33. In that case the High Court found that the respondent husband was domiciled in Ireland at the time of the divorce (which was pre-1986) and that the divorce could not be recognised. On appeal the Supreme Court concluded that as the evidence before the Court did not show a real and substantial connection between the parties in England the Court would be deciding a point of law upon theoretical facts and accordingly the appeal was not allowed. McGuinness J. commented on that judgment at page 107 as follows:

  83. It will be seen from this that the Supreme Court rejected the extension of the recognition rule on narrow grounds and on the particular facts of the case. The case was also decided in a pre-1986 context where only the old rule of common domicile applied; it was also, of course, prior to either W. v W. [1993] 2 I.R. 476 or the recent constitutional and statutory changes. In the present changed circumstances I do not think that this case can be taken as authority that no possible extension of the recognition rules beyond the factor of domicile can be permitted.

  84. McGuiness J. went on to conclude as follows:

  85. In the light of the legal considerations set out above I consider that the decree of divorce granted by the English court to the petitioner and the notice party on the 12th February, 1985, is entitled to recognition under Irish law. It follows that both the marriage between the petitioner and the respondent and the marriage between the notice party and Mr. R. are valid marriages.

  86. There is an interesting footnote to the decision in that case in that an application was made by the Attorney General to be joined as a notice party in those proceedings for the purpose of appealing the decision of the High Court to the Supreme Court. The Supreme Court having considered the application concluded that as no appeal had been taken after the judgment and order in McG. v W. was given, there were no proceedings in which to join the Attorney General. (See [2000] 4 I.R. 1.)

  87. The decision in McG. v W. was not followed in the subsequent case of M.E.C. v J.A.C. The background to that case is described in the judgment of Kinlen J. There were in fact two sets of proceedings before the Court. M.E.C married the respondent J.A.C on 18th May, 1968 in County Sligo. In 1968 the appellant and the respondent moved to England. The parties separated in October 1979 and the appellant returned to Ireland. A divorce was obtained by the respondent in England on the 2nd May, 1980. The respondent then married J.O.C., the notice party on the 29th September, 1989 in London. Proceedings were brought against the respondent by the notice party in 1998 seeking a decree of judicial separation and this was granted to the notice party on the 4th May, 1999. Subsequent to the decree of judicial separation, the appellant, M.E.C., issued a special summons seeking, inter alia, a declaration that the divorce granted in London in 1980 was not entitled to recognition in Irish law on the basis that neither party was domiciled there at the time. The Attorney General was joined to the proceedings and argued against the proposition that the Irish courts should extend recognition to a decree of divorce granted by the courts of a country in which one or both of the spouses had been resident, but not domiciled, prior to and at the time of the institution of the divorce proceedings. A preliminary issue was tried in the proceedings as to whether or not the parties were in fact domiciled in England and the Court concluded that the evidence did not establish that at the time of the divorce either of the two parties to those proceedings were domiciled in England. It then became necessary to consider the question of whether the divorce obtained there was entitled to recognition on any basis other than domicile.

  88. In the course of his judgment, Kinlen J. examined the role of the courts in modifying common law rules.

  89. He noted the approach that was taken by the Supreme Court in W. v W. referred to above and commented as follows:

  90. The Act of 1986 introduced further changes and in particular gave statutory recognition to the rule in Armitage v Attorney General [1966] P. 135. In W. v W. [1993] 2 I.R. 476 the Supreme Court found that the concept of dependant domicile had not survived the coming into force of the Constitution. The court further found that this judicial ‘discovery’ necessitated a new rule as to the recognition of foreign divorces granted prior to the 2nd October, 1986. The rule adopted by the Supreme Court was that a divorce would be recognised if granted by the courts of the country where either spouse was domiciled at the time of the proceedings for divorce.

  91. Kinlen J. set out in extenso the submissions of the Attorney General to the effect that the decision in the case of McG. v W. was wrong. In essence it was submitted on behalf of the Attorney General in that case that it was undesirable that the rules regarding recognition of foreign divorces should differ depending on the “rather arbitrary criterion of the date on which the Act of 1986 came into force”. (p. 409). It was also contended on behalf of the Attorney General in that case that the matter was one best regulated by the Oireachtas and that the conditions which justified radical development of the law in W. v W. did not exist in McG. v W. or indeed in the case before Kinlen J. The Attorney General accepted that the rules regarding recognition of foreign divorces were judge made but noted that the Oireachtas had intervened by virtue of the provisions of s. 5 of the Domicile and Recognition of Foreign Divorces Act 1986 and by s. 30(3) of the Family Law Act 1995. Kinlen J. went on to observe at p. 410:

  92. The application of the current domicile based recognition rules is also capable of producing hardship. Indeed the concept of domicile is itself capable of creating problems. These problems are not capable of resolution by a simple modification of the recognition rules – only a manifold modification of the recognition rules which caters for all the variations is appropriate. Judicial intervention is not. The courts have traditionally refrained from intervening in these circles.

  93. Kinlen J. concluded in that case as follows:

  94. Each case must be determined on its own facts. The facts in this case differ slightly from G. McG. v D.W. [2000] 1 I.R. 96. Moreover, the Attorney General did not appear in that case. Matters were argued in this court by him and indeed by the other parties which were not ventilated in G. McG. v D.W.

    The mere fact that the Oireachtas is slow to deal with many problems in the matrimonial field does not in itself give support to the court's jurisdiction to legislate. As far back as the 1950’s Ó Briain J., President of the Circuit Court (in Attorney General v Ballins (1964) Ir. Jur. 14) expressed the hope that the legislature would look at the whole question of bigamy. Nothing has yet been done to remedy the defects identified.

    If the grounds of recognition are retrospectively extended to include the residence of either party then that will have serious implications for the way in which the State and many of its citizens have ordered their affairs. In an affidavit sworn by Ms. O'Mahony of the Chief State Solicitor's office, she avers that the 1991 census showed that the marital status of 6,103 residents was regulated by foreign divorces; by 1996 that number had increased to nearly 10,000. The Registrar General and the Department of Foreign Affairs in the granting of nulla osta certificates work on domicile not by residence.

    The court is aware that there may well be a very substantial change in the whole law of recognition of foreign divorces in the very near future. There will almost certainly be referenda on ‘Brussels II’ and the ‘Nice Agreements’. However, this court cannot assume the result of referenda or prospective legislation.

    Therefore, this court, being satisfied that neither party to the divorce granted by an English divorce court in respect of the marriage between the applicant M.E.C. and the respondent J.A.C. was domiciled in England at the time, finds that this divorce is not entitled to recognition within the State at this time.

  95. It has been submitted on behalf of the appellant in this Court and indeed on behalf of the Attorney General that more weight should be given to the judgment of Kinlen J. than the judgment of McGuinness J. given that the Attorney General was joined as a notice party in the case of M.E.C. v J.A.C.

  96. For completeness, reference should be made to two further decisions. The first of those is the case of D.T. v F.L. [2002] 2 I.L.R.M. 152. That was a decision of the High Court which concerned a Dutch divorce. The applicant and the respondent had married in Ireland in 1980. Both parties were resident and domiciled in Ireland at that time. In 1987 the parties moved to the Netherlands but in 1992 marital difficulties arose and the applicant and children returned to Ireland. The applicant then sought a decree of judicial separation on the 6th July, 2000. By way of response, the respondent pointed out that he had obtained a divorce on the 13th July, 1994 in the Netherlands and he further claimed that that divorce was entitled to recognition in the State pursuant to the provisions of s. 29(1)(d) or s. 29(1)(e) of the Family Law Act 1995. He claimed that he had acquired a domicile of choice in the Netherlands at the time the divorce was granted and he further claimed that the divorce was entitled to recognition on the basis of residence in the Netherlands as that was the basis upon which it had been granted in that jurisdiction. By virtue of that fact he said that the divorce was entitled to recognition in the State. Morris P. concluded that the divorce was not entitled to recognition in the State and it was held that the onus was on the respondent to prove that he had relinquished his domicile of origin and acquired a domicile of choice in the Netherlands. It was concluded that the respondent was domiciled in Ireland on 13th July, 1994 and in the course of his judgment Morris P. referred to the decision in McG. v W. It is of interest to note that while the decision in McG. v W. was considered in the course of the case, it does not appear that the decision in the case of M.E.C. v J.A.C. was cited in the course of the case although that judgment was delivered in March of the same year as the judgment of Morris P.

  97. Morris P. at p. 158 said as follows:

  98. Prior to McG v W [2000] 1 I.L.R.M. 107 a divorce based on residence as conferring a jurisdiction had not been held to be entitled to recognition in this jurisdiction. In that case McGuinness J. had to consider a set of facts which included the fact that a divorce was granted in England in 1985 based upon the residence of the relevant party. Of significance is the fact that the divorce was granted prior to the coming into operation on the 2nd October, 1986 of the Domicile and Recognition of Foreign Divorces Act 1986. McGuinness J. held that the laws governing recognition of foreign divorce in our jurisdiction prior to 1986 were Common Law or Judge made and accordingly on the authority of W. v W. [1993] 2 I.R. 476; [1993] I.L.R.M. 294 she recognised the court’s entitlement and indeed, obligation given certain circumstances, to change such laws. On this basis and for the reasons stated in her judgment she changed the common law rules as to entitlement to recognition holding that, in the instant case, the divorce based on the residence of the party in question in England entitled the divorce to recognition in this jurisdiction. With that decision I am in respectful agreement. However, as I say the divorce with which the learned Trial Judge had to deal was one granted prior to the 2nd October 1986. The divorce with which I am concerned was granted after the coming into operation of the Act.

    The question now is this: what effect, if any, did the passing of this Act have upon the court’s entitlement to alter or vary the rules as to recognition and indeed whether these rules are still regulated by common law. It would follow that if they are regulated by common law then in an appropriate case the court is entitled to alter them. If the rules are regulated by statute then the court is not, as to do so would be a trespass upon the function of the legislature.

  99. He concluded at p. 159:

  100. I have no doubt however that since it was open to the court in McG v W (No. 1) [2000] 1 I.L.R.M. 107 to bring the common law in line with current policy it was correct to do so. I believe that if there was a jurisdiction still vested in me I should do so in this case. However, in my view the passing of the 1986 Act removes this jurisdiction from me.

    Residence is not a basis for recognition under the Act.

  101. Clearly, Morris P. in considering the decision in McG. v W. was of the view that it was appropriate to have altered the common law rules in relation to the recognition of foreign divorces in the manner set out by McGuinness J. in the case of McG. v W. but equally, he was of the view that the enactment of the 1986 Act precluded him from relying on residence as a ground for recognition following the introduction of that Act in respect of any divorce granted after the Act came into force. So far as the position post-1986 is concerned, the statutory provisions govern the situation and clearly in those circumstances, the recognition of foreign divorces granted after 1986 can only be determined in accordance with statutory provisions and those statutory provisions are clear in their intent, namely, that a foreign divorce will only be recognised on the basis of domicile. It is unfortunate that Morris P. was not referred to the decision of Kinlen J. in M.E.C. v J.A.C. when he was considering this difficult question.

  102. The final case to which reference might be made is a decision of the Supreme Court. That is the decision in the case of P.K. v T.K. [2002] 2 I.R. 186. That case concerned the recognition of a divorce granted in New York. The High Court had considered the question as to whether or not the divorce was entitled to recognition based on domicile. The divorce in question in that case was one granted in 1980. Having granted recognition to that divorce, the applicant who had brought proceedings in this jurisdiction seeking a decree of divorce pursuant to the provisions of the 1996 Act, was not entitled to seek a divorce in this jurisdiction. She appealed and was unsuccessful in her appeal. Reference was made in the course of submissions to a passage from the judgment of Fennelly J. in which he observed:

  103. There was no real dispute at the hearing of the appeal as to the applicable legal principles. Both parties accepted that the recognition of the New York decree depended entirely on whether the applicant had a New York domicile at that time. Since the decision in W. v W. [1993] 2 I.R. 476, domicile of one party is enough for recognition. No broader basis for recognition of foreign divorces was advanced. In this connection, it has to be observed that parts of the judgment of the trial judge quoted above appear to imply that it may be significant that the applicant approbated the decree. The present case, must, however, in the existing state of the law, be decided exclusively by reference to the domicile of the applicant at the time of the decree.

  104. In the course of submissions herein the respondent made the point in reliance on this case that that decision ought not to be relied upon to support the conclusion that domicile is the only criteria for recognition of a foreign divorce and suggested that the last sentence in the passage quoted above left open the possibility that the Court might consider a broader basis for recognition of foreign divorces. On that last point, I think that it would be wrong to read that suggestion into that sentence. What was uppermost in the mind of Fennelly J. in the course of that part of the judgment was the question of whether or not the concept of estoppel might have a part to play in the question of recognition having regard to the fact that the applicant in those proceedings had participated in the divorce proceedings in New York. Indeed Fennelly J. continued that passage by saying as follows:

  105. Walsh J., in Gaffney v Gaffney [1975] I.R. 133 at p. 152 stated that, since recognition of divorce decrees of another jurisdiction, depends on status which confers jurisdiction, there can be no place for rules based on estoppel which might prevent a party giving evidence on that issue. That dictum has not been challenged in this case. The evidence to which objection was taken in that case was evidence which the plaintiff had given to show that she had been coerced by threats into presenting a divorce petition in England, a petition which on its face asserted that the plaintiff was domiciled in England .... For my own part, I would not wish categorically to exclude the possibility that a person who had so acted in relation to a decree of divorce granted by a foreign jurisdiction might be precluded from questioning its validity. However, the issue has not been argued on this appeal and the facts would not appear to support even a generous application of the doctrine of estoppel.

  106. I think it can be seen from the passage above that Fennelly J. was not making the suggestion that there might be an alternative basis to domicile for recognising a decree of divorce granted in a jurisdiction other than a jurisdiction in which one of the parties to the divorce was domiciled, as submitted on behalf of the respondent.

  107. Other legal developments

  108. It would also be appropriate to refer to European law in relation to the recognition of foreign divorces. The first relevant provision is contained in Council Regulation 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (Brussels II Regulation) which came into force on the 1st March, 2001. Subsequently it was replaced by Council Regulation EC No. 2201/2003 which is known as Brussels II bis which came into effect on the 1st March, 2005. Article 3(1) of Brussels II bis contains the following provisions in relation to the general jurisdiction in relation to divorce and other matters as follows:

  109. 1.

    In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State

    (a)

    in whose territory:

    the spouses are habitually resident, or

    the spouses were last habitually resident, insofar as one of them 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 or she resided there for at least a year immediately before the application was made, or

    the applicant is habitually resident if he or 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 or her ‘domicile' there;

    (b)

    of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile' of both spouses.

    2.

    For the purpose of this Regulation, ‘domicile' shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.

  110. Article 21 of Brussels II bis is also of significance. It provides as follows:

  111. 1.

    A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.

  112. The provisions of Brussels II and Brussels II bis came to be considered in a decision of the Supreme Court in the case of D.T. v F.L. [2009] 1 I.R. 434. The parties in that case were those involved in the earlier decision of the High Court in the case of D.T. v F.L. [2001] 2 I.L.R.M. 152, in which the judgment of Morris P. has previously been referred to. As pointed out earlier, the High Court refused the declaration sought by the respondent in the earlier proceedings that the decree of divorce obtained in the Netherlands should be recognised in the State. The High Court had held that the respondent was domiciled in Ireland and that residence was not the basis for recognising the divorce obtained in the Netherlands. Having unsuccessfully appealed the matter to the Supreme Court, the respondent commenced a further challenge to the applicant’s entitlement to seek a decree of judicial separation and sought orders that the High Court should decline to exercise jurisdiction in respect of the claims of the applicant for any ancillary reliefs relying on a number of EU regulations. The respondent sought to argue that the relevant EU regulations had retrospective effect. Fennelly J. in giving the judgment of the Supreme Court said (para 73):

  113. It is a general principle of law, widely recognised in different systems of law that provisions intended to have a retrospective effect must be clearly expressed so as to lead to that result. As the Court of Justice held, at para. 20 of its judgment in Firma A. Racke v Hauptzollamt Mainz ..., cited by the applicant, ‘although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected’.

  114. It has been argued on behalf of the respondent in these proceedings that by virtue of the changes brought about by the EU regulations and the consequence that a decree of divorce granted in one Member State will be recognised in another Member State without any special procedure being required that this is indicative of a clear policy as to the recognition of foreign divorces (save in the case of Denmark which obtained a derogation from the regulations). It is on the basis of the developments in policy and relying on the decision of McGuinness J. in the case of G. McG. v W. that the respondent contends that the divorce obtained in the U.K. in this case should be recognised in this jurisdiction.

  115. Decision

  116. Article 41.3 of the Constitution provides as follows:

  117. No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.

  118. At the heart of this case is the question as to what is a subsisting valid marriage under the law for the time being in force within the jurisdiction as framed in the question posed in the Consultative Case Stated, namely:

  119. Does the law of the State recognise the validity of a foreign divorce lawfully granted prior to the 2nd October, 1986 in a country where neither party to the marriage in question was domiciled at the date of the institution of the divorce proceedings but where one party was resident on that date?

  120. The question posed can only be answered following a consideration of the applicable common law rules and the conflicting judgments of the High Court in the cases of McG. v W. and M.E.C. v J.A.C. A determination as to which of those judgments correctly reflects the law in this jurisdiction requires to be made.

  121. A number of observations can be made. First of all, the 1986 Act governs the recognition of foreign divorces from the 2nd October, 1986. The basis of such recognition is domicile. The provisions of Brussels II bis apply to divorces in EU states (except Denmark) in respect of divorces subsequent to the 1st March, 2005 and provide that jurisdiction is based on habitual residence. It further provides for recognition of a divorce without any special procedure being followed. Article 22 of Brussels II bis sets out the grounds for the non-recognition of judgments relating to divorce. In addition to those provisions, the Fifteenth Amendment of the Constitution provided at Article 41.2 for divorce and provided, inter alia, that a court may grant a dissolution of marriage where it is satisfied that conditions prescribed by law are complied with. Those conditions include the provisions of the 1996 Act which permitted an application for a divorce to be made where either of the spouses was domiciled in the State at the time of the institution of the proceedings or where either of the spouses had been ordinarily resident in the State for a period of one year on that date.

  122. The final statutory provisions to which I should refer at this point are the provisions as to jurisdiction for the grant of a divorce contained in the Family Law Divorce Act 1996. As I have already said the provisions of the Family Law Divorce Act 1996 provide that the jurisdiction in relation to divorce may be exercised if either of the spouses concerned was domiciled in the State on the date of the institution of the proceedings or either of the spouses was ordinarily resident in the State throughout the period of one year ending on the date of the institution of the proceedings. Thus, two bases are provided for the exercise of the Court’s jurisdiction to grant a divorce.

  123. It can be seen that here are a number of different criteria applicable to the recognition of foreign divorces in this jurisdiction. A foreign divorce granted after the 2nd October, 1986 will be recognised in this jurisdiction provided that it was granted in the courts of a state where one or other of the spouses was domiciled.

  124. A divorce granted after the 1st March, 2001 but before the 1st March 2005 in an EU state will be recognised on the basis of habitual residence in accordance with the terms of the Brussels II Regulation. A divorce granted after the 1st March, 2005 in an EU State will be recognised on the basis of habitual residence in accordance with the provisions of Brussels II bis which came into force on that date. (It should be remembered that in the case of Brussels II and Brussels II bis, Denmark obtained a derogation from the provisions of the Council Regulation).

  125. The decision of the Supreme Court in the case of W. v W. referred to above makes it clear that a foreign divorce will be recognised if granted prior to the 2nd October 1986 in a state where one or other of the spouses was domiciled at the date of the institution of the proceedings.

  126. If the decision of the High Court in the case of McG. v W. is correct then a foreign divorce would also be entitled to recognition on the basis of residence if but only if the divorce in question was obtained prior to the 2nd October, 1986 as after that date, the provisions of the 1986 Act are applicable.

  127. McGuinness J. in the case of McG. v W. considered that it was open to the Court to extend the common law rules in relation to recognition of foreign divorces to provide for recognition on the basis of residence. She did so having regard to the decision in W. v W. which modified the then existing common law rule as to the dependent domicile of spouses. In that regard she referred to the judgment of Blayney J. at page 505 which I have referred to above but which I think it would be helpful to refer to again. Blayney J. had stated:

  128. In my opinion, such recognition would be consistent with what the present policy of this Court should be. The Court may not leave out of account the provisions of the Domicile and Recognition of Foreign Divorces Act, 1986, which, having abolished the rule as to the dependent domicile of a married woman, provided as follows in s. 5 sub-section (1) [he then quotes the sub-section and continues]:

    While this provision applies only to divorces granted after the statute came into force on the 2nd October, 1986, it seems to me that it would be wholly consistent with the statute that this Court, as a matter of public policy, should independently modify the judge-made rule in order to do justice to the plaintiff.

  129. McGuinness J. took the view that in deciding “what the present policy of the Court should be” she “may not leave out of account” the provisions of the Family Law (Divorce) Act 1996. The words in quotation marks were taken by her from the judgment of Blayney J. in W v W. She added that in those circumstances it did not appear to her to be inconsistent with the 1986 Act that the Court should independently modify the judge-made rule in order to do justice to the parties in the case before her.

  130. With great respect, I have come to the conclusion that McGuinness J. in the case of McG. v W. was not correct in identifying what was the policy of the Court and its effect on the modification of the common law rules. In W v W., Blayney J. first considered whether the common law rule in relation to the recognition of foreign divorces could be modified. He concluded that the common law rules were judge made laws and as such could be modified in accordance with “the current policy of the court”. In modifying the common law rule, he stated that the court should consider the rule applicable at that time which was contained in the Act of 1986 and, having done so, he concluded that the common law rule applicable prior to the 2nd October 1986 should be modified in line with the rule contained in the 1986 Act.

  131. Thus, when the question of a further modification of the common law rule arose in the case of McG. v W., it was inevitable that in trying to discern the public policy underlying the common law rule consideration would be given to the changes brought about by the introduction of divorce in this country as a result of the Fifteenth Amendment of the Constitution and the legislation giving effect to that amendment. The Family Law (Divorce) Act 1996 provides for jurisdiction to grant a divorce in this jurisdiction on the basis of either residence or domicile. In the case of residence, it is necessary for one of the spouses to have been ordinarily resident in the State throughout the period of one year ending on the date of institution of proceedings. No such residential requirement is necessary in the case of a party domiciled in the State on the date of institution of the proceedings.

  132. In considering what the present policy of the court was, it was appropriate for McGuinness J. to take into consideration the changes brought about by the Family Law (Divorce) Act 1996. Having said that, whilst it is undoubtedly the case that the Oireachtas provided for the grant of divorce on two separate bases in the courts of this jurisdiction, the legislature did not at the same time vary or alter the provisions of the Act of 1986 in relation to the recognition of foreign divorces. If the Oireachtas considered it appropriate to do so, there was no reason why such a change could not have been introduced. Thus, it is my view that the policy of the court to be derived from the current statutory provisions in relation to the recognition of foreign divorces must be found in the 1986 Act which expressly provides for recognition of foreign divorces on the basis of domicile alone. If it were not for the 1986 Act, it would be open to argue that public policy requires the recognition of foreign divorces either on the basis of one year’s residence or alternatively on the basis of domicile. However, the 1986 Act is clear and is the law. For that reason, I find it difficult to see how a modification of the common law rule to provide for recognition on the basis of residence could be said to be in line with the present statutory rule. Contrast the position in McG. v W. with the facts of W. v W. In the latter case the question that arose was the status of the concept of the dependent domicile of a wife prior to the enactment of the 1986 Act. The Act clearly demonstrated public policy by abolishing the concept of dependent domicile. It can be seen that the approach of the Court in modifying the common law rule was entirely consistent with the statutory policy apparent in the provisions of the Act of 1986. The approach in McG. v W. relied on the provisions of the 1996 Act to the exclusion of the existing and extant provisions of the Act of 1986 in relation to recognition. Nothing in the Act of 1996 modifies or varies in any way the provisions of the Act of 1986 in relation to the recognition of foreign divorces. For that reason, it seems to me that there was no basis for modifying the common law rule in the case of McG. v W. The Act of 1986 expressly provides the ground upon which foreign divorces post-1986 can be recognised and I can see no basis upon which the courts could adopt a different approach for recognition in respect of a foreign divorce granted prior to 1986. I think it goes without saying that if a common law rule is to be modified in accordance with the present policy of the courts, such policy should be in line with and not in conflict with public policy as demonstrated in legislation

  133. The fact that the law in relation to the jurisdiction for granting a divorce in the State and the law in relation to the recognition of foreign divorces use different criteria may appear to be inconsistent but that is not a reason for modifying the common law rule.

  134. If the judgment in the case of McG. v W. was correct, that would lead to the anomaly that foreign divorces granted prior to the 2nd October, 1986 could be recognised on the basis of residence whilst those post-1986 could be recognised only on the basis of domicile.

  135. It could be argued that the appropriate course to take would be for the legislature to provide for the recognition of foreign divorces on the basis of residence and that such a change would have the merit of being consistent with the terms upon which a divorce may be granted in this jurisdiction and with EU provisions for recognition of foreign divorces. However, it is quintessentially a matter for the Oireachtas to legislate and not for the courts. Kinlen J. in the course of his judgment in M.E.C. v J.A.C. at page 412 observed:

  136. The mere fact that the Oireachtas is slow to deal with many problems in the matrimonial field does not in itself give support to the court's jurisdiction to legislate.

  137. Kinlen J. added at page 412:

  138. If the grounds of recognition are retrospectively extended to include the residence of either party then that will have serious implications for the way in which the State and many of its citizens have ordered their affairs.”

  139. Those remarks are just as valid today.

  140. Conclusion

  141. McG. v W. sought to modify the common law rule in relation to recognition of foreign divorces in respect of the period prior to the Act of 1986. The basis upon which a common law rule can be modified was identified in the decision of this Court in W. v W., in which it was recognised that common law rules are judge-made law and may be modified, if necessary, having regard to public policy. In that case, the common law rule in relation to the dependent domicile of wives was modified to bring it into line with the statutory rule provided for in the Act of 1986. It is undoubtedly the case that the Family Law (Divorce) Act 1996 enables divorces to be granted by reason of residence in the State but if the legislature had wished to modify the position in relation to the recognition of foreign divorces, it was open to the legislature to do so at that time or indeed at any subsequent time. No such change has been brought about and in circumstances where the 1986 Act governs the recognition of foreign divorces on the basis of domicile, I fail to see how it could be said that the present policy of the court is such that the common law rule applicable to foreign divorces granted prior to the 2nd October 1986 may be modified. For that reason I regret to say that in my view, McG. v W was not correctly decided.

  142. It is unfortunately the case that the law in respect of the recognition of foreign divorces has developed in a way which provides for different criteria for the recognition of foreign divorces depending on the happenstance of where and when the divorce was granted. For example, the recognition of a divorce granted in New York will be based on the domicile of one of the parties; a divorce granted in an EU State after the 1st March 2005 will be recognised on the basis of habitual residence in accordance with the provisions of Brussels II bis which came into force on that date. Had the divorce at issue in this case been granted after the 1st March 2005, the provisions of Brussels II bis would have applied and on the facts of this case it is difficult to see any basis which could have precluded its recognition. Is there any justification for a system of recognition based on habitual residence for one group of people while for another group recognition is based on domicile? Given the disparity between the different criteria for recognition of foreign divorces in this country and the importance of permitting people to have clarity and uniformity in relation to their status, it seems to me that it is desirable to reconsider the legislative position in relation to this difficult issue so that there could be, so far as is possible, a uniform approach to the recognition of foreign divorces. After all, people are surely entitled to have certainty as to their marital status.

  143. In conclusion, having regard to the circumstances of this case, I would answer the first question raised as follows:

    (1) Does the law of the State recognise the validity of a foreign divorce lawfully granted prior to the 2nd October, 1986 in a country where neither party to the marriage in question was domiciled at the date of the institution of the divorce proceedings but where one party was resident on that date?

    No.

    Having regard to that answer, I am of the view that it is not necessary to answer the second and third question.

  144. Justice O’Donnell

    Introduction

  145. 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.

  146. 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).

  147. 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.

  148. 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 applicable law and in limiting unnecessary legal complexity and human distress.

  149. Where the reason for the difference in the applicable law of different jurisdictions whether as to the grounds on which divorce is available, or the availability of divorce at all, is attributable to important social policy advertently chosen by one or other country, then any disconnect between the granting of divorces in one jurisdiction and their recognition in another, is merely a consequence of a public policy adopted by that jurisdiction, to which the courts must give effect. In my view it is impossible to understand the development of the Irish case law on foreign divorces or indeed the structure of statutory provisions without having regard to the fact that the grant of divorce in Ireland was unknown since the foundation of the State. Indeed between 1937 and 1996 the Constitution contained an explicit absolute ban on divorce. That was an expression of public policy in its strongest form and its impact is clear in the decisions on recognition during that period. This leads to another important consideration. The law frames the question as the terms on which Irish courts will recognise orders of foreign courts. This might at first sight suggest Irish courts concerning themselves with decisions made in respect of foreign nationals. In fact the early cases in my view illustrate an understandable concern with applying a rule of recognition that will not facilitate Irish citizens in circumventing the public policy against divorce expressed in the Constitution itself. Since however it is manifest that the law and public attitudes in Ireland have undergone significant changes, it is important when considering the decided cases, and where relevant the enacted statutes, particularly for the purposes of determining the present public policy of the courts, to put such matters in their distinctive historical context.

  150. The facts in this case stated are sparse. We know little about the circumstances of the divorce obtained in England or the applicant’s motivation in seeking it or the respondent’s response to it. However, it is undeniable that the applicant sought and obtained a divorce in the UK and lived there for 22 years as a divorced woman. While the High Court Judge has found the applicant was not domiciled in the UK at the time of the divorce, it is clear that she was bona fide resident there as indeed her subsequent residence shows. At some stages during that 22 year period time she might have been considered to be domiciled there. Certainly the divorce was granted by a jurisdiction with which she had a close real and enduring connection. It is not suggested that the divorce was, and is, anything but perfectly valid in the UK. However, on any view the applicant’s case is that she seeks a declaration that between 1982 and 2005 she and the respondent were divorced in England and the UK more generally (and in every country which recognises that divorce) but married in Ireland. In the underlying Circuit Court proceedings she must solemnly assert that while divorced in England she was also separated for more than 5 years from her husband (in Irish law) and, unsurprisingly, that there is no prospect of reconciliation. The end point of this is to seek a decree of divorce as of the date not of the English divorce, but rather of any Circuit Court decree. If this regularising of the position of the parties was the only object of the proceedings then it would probably be more convenient to simply recognise the English divorce, but the proceedings also seek ancillary relief in the nature of periodical payments, lump sum payments, a right to reside in the family home to the exclusion of the respondent, and an order transferring to her the respondent’s entire estate and interest in the family home and contents, among other reliefs. This leads me to two observations. First, this issue is as much, if not more about financial matters as about status. Second, any resolution of the financial issues between these parties and others in a similar position requires a considerable degree of flexibility to reflect the reality of their lives. This is not easily achieved (and may not be capable of being achieved) if it is to be approached on the factual fiction (whatever the legal analysis) that this is a couple married for the last 40 years and the applicant is a spouse for whom “proper provision” must be made out of the present assets available to the respondent, before an order of divorce is made.

  151. The Development of Irish Law on Recognition of Foreign Divorces

  152. I gratefully adopt the statement of the development of the law set out in the judgment of Dunne J. and do not wish to repeat it at any length. It is worth noting however that in Mayo-Perrott v Mayo-Perrott [1958] I.R. 336 (“Mayo-Perrott”), what was involved was an application to enforce a costs order made on a decree of divorce granted by an English court in respect of English domiciled parties, one of whom had subsequently moved to Ireland. There was a division of views in the court which it was not necessary to reconcile for the purposes of the case. The view taken by Maguire C.J. of the provision of Article 41.3 was clear and simple: no person divorced abroad could contract a valid marriage within Ireland within the lifetime of the other party to the marriage. That judgment and the judgment of Kingsmill Moore J. were strictly speaking obiter, since they dealt with the circumstances in which a foreign divorce would be recognised in Ireland and all members of the court were agreed that whether the foreign divorce could be recognised or not, it could not be enforced, which was the issue the subject matter of the proceedings. Nevertheless, the careful judgment of Kingsmill Moore J. has come to be accepted as an authoritative and insightful statement of the law which diverted Irish law from a path which might have purchased clarity and certainty but at a very high price. It is one indicator of the degree to which the legal situation has changed that if the same issue were to arise today, and a party sought to enforce an ancillary order in relation to a decree of divorce granted by the courts of the parties domicile, the Irish courts would almost unhesitatingly enforce the award. In the case of any member state of the European Union that would indeed be an obligation pursuant to Brussels II bis. But if the divorce was granted in a member state and predated the coming into force of Brussels II bis, or was granted by the courts of a non contracting state which was the court of the parties domicile, I consider that the result would be the same. That is because there would no longer be the public policy objection to the enforcement of a divorce decree which existed in 1958 at a time when the Constitution contained an absolute prohibition on the grant of divorce. This is just one illustration of the fact that this area of law is one in which significant developments have taken place and where developments elsewhere in Irish law necessarily affect the application of the rules on recognition and enforcement of foreign decrees.

  153. It may however be worth considering in some greater detail the reasoning in two important English cases, Travers v Holley [1953] P. 246 and Indyka v Indyka [1969] A.C. 33 (“Indyka”), because not only are they important cases in the field of conflicts of law, and deal explicitly with the questions which arise in this case as to the recognition of foreign divorces as a matter of common law, but they were expressly relied on in the judgment of Blayney J. in the decision of J.W. v J.W., which is the most important Supreme Court decision in this area.

  154. Travers v Holley concerned a husband and wife who married in the UK in 1937 and emigrated to New South Wales in Australia. There the husband left his wife, obtained a commission in the Australian forces and subsequently transferred to the British forces. The wife obtained a divorce in Australian in August 1943 on grounds of desertion. Both the husband and wife later remarried. The husband’s second marriage was unsatisfactory, and in seeking to resolve that matter, he was, it appears, advised that the English courts would not recognise the Australian divorce, because at that time the husband had reverted to his English domicile. It followed on this logic that the wife, by remarrying, had committed adultery, and on that ground the husband sought a divorce in England. The English Court of Appeal held that even assuming that the parties were no longer domiciled in Australia at the time of the divorce (which was probable since the husband had returned to the UK and the doctrine of the domicile of dependency then applied to the wife) an English court would nevertheless recognise the divorce in Australia because the UK courts granted divorces on the same basis as the courts in New South Wales, i.e. to deserted wives resident though not domiciled within the jurisdiction. This was an important departure from the existing common law rule that only domicile based divorces could be recognised. Furthermore, while the respective statutory provisions in the United Kingdom and Australia were very narrow and designed to ameliorate the position of deserted wives then suffering from the doctrine of the domicile of dependency, the principle stated was stated in broader and more general terms. Thus Somervell L.J. said (at page 251):

  155. On principle it seems to me plain that our courts in this matter should recognize a jurisdiction which they themselves claim.

    Hodson L.J. (at page 256) said:

    It seems to me, therefore, that Parliament has cut the ground from the argument put forward on behalf of the husband. If English courts will only recognize foreign decrees of divorce where the parties are domiciled in the territory of the foreign court at the time of the institution of the proceedings, because that is the jurisdiction which they themselves claim, what is the situation when the courts of this country arrogate to themselves jurisdiction in the case of persons not domiciled here at the material date? It must surely be that what entitles an English court to assume jurisdiction must be equally effective in the case of a foreign court.

  156. It should be said that as pointed out later in Indyka, it is not the case that the courts of the UK had “arrogated” to themselves jurisdiction in the case of a person not domiciled in the UK. Instead, as is implicit in the passage, that jurisdiction had been conferred by statute. The principle however remained valid: as a matter of common law, courts should recognise divorces granted on a basis which those courts themselves granted divorce. The reasoning therefore, if accepted, is clear authority for a link between the jurisdiction to grant divorce, and the jurisdiction to recognise foreign divorces. Indeed that link has always existed at common law. Thus, a court will refuse to recognise a foreign decree of any court, if it is contrary to public policy. Consideration of public policy inevitably involves consideration of the grounds upon which the court invited to recognise the foreign decree, would itself grant a decree. One of the reasons that a court may refuse to recognise divorces available in some exotic jurisdictions after very short periods of residence is because the public policy of the recognising state , as deduced from its own more restrictive jurisdiction, is against it. The decision in Travers v Holley is merely the obverse of that coin: if the recognising country exercises a jurisdiction to grant divorce on a certain basis, it cannot offend public policy to afford recognition to foreign divorces granted on the same jurisdictional basis.

  157. Indyka v Indyka is an important a decision of the House of Lords on this issue, reached after extensive argument. It was important at the time because of the flexibility shown by the entire House (Lord Reid, Lord Morris of Borth-Y-Gest, Lord Pearce, Lord Wilberforce and Lord Pearson), which was prepared to extend recognition to a divorce granted by the courts of a jurisdiction to which the party had a “real and substantial connection”. That test proved relatively short lived in the UK because that jurisdiction, by statute, adopted a test of habitual residence shortly thereafter. But the decision of the House of Lords is a clear demonstration of the flexibility of the common law and its capacity to adapt to significant changes in society and law. For present purposes the decision is perhaps more important because a majority of the Court (Lord Morris of Borth-Y-Gest, Lord Pearce and Lord Pearson) agreed with the majority in the Court of Appeal (Lord Denning M.R. and Diplock L.J. as they then were) that the principle in Travers v Holley could apply in a retrospective sense. Thus, the question was not whether at the time the divorce was granted in the foreign jurisdiction the Court would itself have granted a divorce on the same basis, but rather whether at the time that recognition is sought, the Court would grant divorce on that ground or on that basis.

  158. It was necessary to decide this point because the case involved a decree of divorce in Czechoslovakia in February 1949 granted on the basis of residence, which at that time was not a basis for divorce in the United Kingdom and did not become a basis for divorce until December of that year. The majority of the Court of Appeal however was prepared to hold that the English courts should recognise in foreign countries a like jurisdiction to that which they themselves claimed as of the date of recognition. The divorce in Czechoslovakia was valid and to be recognised in the UK whether it was granted before or after the English law changed in December 1949. A majority of the judges in the House of Lords agreed. All the members of the House of Lords considered that this was a matter to be determined by the common law and that the flexibility of the common law was particularly desirable in this area. Thus (at page 65), Lord Reid said:

  159. But Parliament has rarely intervened in the matter of recognition of foreign matrimonial decrees. The existing law is judge made, and I see no reason why that process should stop.

  160. Lord Morris of Borth-Y-Gest said (at page 69):

  161. Though the legislature has from time to time since 1857 defined and specified the grounds upon which our courts will decree a dissolution of marriage it has in the main, though subject to certain relatively recent statutory enactments, been left to the courts to decide the basis upon which they will undertake jurisdiction. It has largely been left to the courts to decide whether and when decrees of dissolution granted in the courts of other countries will here be recognised.

  162. These observations can be applied with equal if not greater force in this jurisdiction. The 1986 Act was the first, indeed so far the only, statutory intervention in the field of recognition of foreign divorce. Walsh J. stated in Gaffney v Gaffney [1975] I.R. 133 that the law of recognition of foreign divorces was the common law and that neither the coming into force of the 1922 or 1937 Constitutions had the effect of “freezing our common law.... in the condition in which it was to be found at the coming into force of the Constitution of 1922 so that it could never be departed from save by enactment of the Oireachtas.” (p. 151).

  163. Lord Pearce in Indyka also observed that there was a close link between jurisdiction and recognition. At page 78 he said:

  164. But in so far as it [a country] confines its recognition more narrowly than its jurisdiction, it is adding to the sum of unilateral marriages. Thus the definition of jurisdiction should be closely related to that of recognition.

  165. At page 84 he said:

  166. It would be insular and unreasonable to maintain that one should in the interests of universality and international law .... refuse to acknowledge decrees given on the same basis as those which one is giving oneself.

  167. At page 85 he emphasised that this was a matter of common law:

  168. So far as recognition is concerned, Parliament has, apart from certain reciprocal arrangements within the Commonwealth .... refrained from intervening. and it is for the courts to decide what decrees they will recognise, bearing in mind the policy of Parliament in extending jurisdiction and the social necessities that, in this country as in others, underlay that policy.

  169. At page 91 Lord Pearce stated clearly, in terms adopted and approved by Blayney J. in J.W. v J.W. that:

  170. In my opinion the question whether a foreign decree should be recognised should be answered by the court in the light of its present policy, regardless (within reason) of when the decree was granted.

  171. At page 106 Lord Wilberforce regarded Travers v Holley as:

  172. A general working principle that changes in domestic jurisdiction should be taken into account by the courts in decisions as to what foreign decrees they will recognise.

  173. At page 110 Lord Pearson adopted and applied the principle in Travers v Holley so as to recognise the Czech divorce.

  174. The principles in Travers v Holley and in Indyka were expressly approved and indeed relied upon in J.W. v J.W. If accordingly this case was approached on the basis of the reasoning in those decisions, that reasoning should lead, at least in principle, to a recognition of the divorce in this case. It is a divorce based on bona fide residence. Such divorces are now granted by the Irish courts and have been since 1996. The Irish courts should in principle recognise a divorce granted on the basis on which the court itself grants divorce. This illustrates in my view the fact that if the English divorce here is not to be recognised, it must be because of some other factor. In this case that factor is said to be the impact of the 1986 Act. Accordingly it is necessary to consider the provisions of that statute.

  175. The Domicile and Recognition of Foreign Divorces Act 1986

  176. The 1986 Act is short and contains only six sections. It does not purport to be a general statement on the recognition of decrees of foreign courts generally, or a provision for the recognition and enforcement of decrees in matrimonial matters. It is, I think, clear that the Act was intended first and foremost to deal with the abolition of the married woman’s domicile of dependency and make certain ancillary consequential provisions in relation to that abolition. The concept of dependent domicile, while part of Irish law, had already been signalled as constitutionally vulnerable in the judgment of Walsh J. almost a decade earlier in Gaffney v Gaffney. The underlying theory of the dependent domicile was clearly repugnant to any modern understanding of marriage. It remained a part of the law, perhaps perversely, because while it operated haphazardly, it had the effect of sometimes facilitating the spouses in obtaining recognition of a foreign divorce, if the husband could obtain a foreign domicile. The problem which confronted the legislators in 1986 was the same as that which the Supreme Court had to address in 1993 in J.W. v J.W. It was not so much a question of the abolition of dependent domicile, but rather what would be put in its place. The default position was that contemplated in the dissenting judgment of Hederman J. in J.W. v J.W., namely that the Irish courts would only recognise a divorce granted by a court of the common domicile by the husband and wife, which, in the absence of the artificial imputation of the husband’s domicile to the wife, meant that the spouses might have different domiciles. In some circumstances this might mean that no country would have jurisdiction to grant divorce. For that reason, s. 5(1) addressed the question of recognition of foreign divorces and substituted for the common law rule of common domicile a new rule that divorce would be recognised if granted in the country where either spouse was domiciled. Section 5 does not therefore embody any devotion to the principle of domicile as a basis for recognition, but rather seeks to avoid what would otherwise be an undesired consequence of the abolition of the rule of dependency. It was natural that domicile would be adopted in 1986 as the basis of recognition of foreign divorces, since any standard which was easier to satisfy would run the risk of Irish citizens domiciled in Ireland obtaining foreign divorces and then seeking to have them recognised in Ireland when that was plainly contrary to the Constitution. Put another way, the choice of domicile in s. 5 as the sole basis of recognition was a logical companion to the then extant prohibition on divorce contained in Article 41.

  177. The decision of the Supreme Court in W v W

  178. In J.W. v J.W. this Court had to decide (at a time when divorce was still prohibited by the Constitution) what rule should apply to divorces granted by foreign courts before 1986 since the 1986 Act operated prospectively. The Court first held that the rule of dependent domicile did not survive the enactment of the Constitution. But the more difficult question was what rule of recognition should the Court apply? As already discussed the common law was that the Court should recognise a divorce granted by the courts of the common domicile of the parties, and the rule of dependent domicile meaning that the common domicile of the parties was the domicile of the husband. If the rule of dependent domicile fell that would leave in place the rule of common domicile. That however was an unsatisfactory rule. The significance of the decision in J.W. v J.W. is that the majority of the Supreme Court considered that it was entitled to alter the existing common law rule and to do so by reference to existing public policy, which it found to be embodied in the 1986 Act, and recognise pre 1986 divorces granted by the domicile of either spouse.

  179. The judgment of Blayney J. quoted extensively from the decisions in Travers v Holley and Indyka. He also referred to the judgment of Kingsmill Moore J. in Mayo-Perrott. The essence of his judgment is encapsulated in a passage at page 504:

  180. I think there is no doubt that this [an extract from Mayo-Perrott] was a colourful endorsement of the public policy of avoiding limping marriages and I am satisfied this was one of the main objects in this country also of the common law rule in regard to the recognition of foreign divorces.

    Two additional conclusions can be drawn from the passages cited from the judgments in Travers v Holley [1953] P. 246 and Indyka v Indyka [1969] 1 A.C. 33: firstly, that the common law rule is judge-made law and is not immutable; and secondly that the question of when Court in the light of its present policy.

  181. Applying the principles stated by Blayney J to the present case would in my judgment lead to a recognition of the foreign divorce in this case. First, it is plain that the object of the common law in avoiding limping marriages points towards recognition. Second, while the rule of recognition adopted in J.W. v J.W. depended on domicile, it is clear from the passage in Blayney J.’s judgment itself, that “the common law rule is judge made law and is not immutable”. It follows that this Court can and should adjust the common law, where it is necessary or appropriate to do so, as was done in J.W. v J.W. itself and in Travers v Holley and in Indyka. The third issue is the question of public policy, but that is to be determined by reference to present public policy, that is, as of today. It is clear that the public policy in the fields both of divorce and recognition have altered dramatically since 1986 and indeed even 1993. While in 1993 in J.W. v J.W. public policy pointed towards recognition based on the domicile of either party, public policy has plainly changed since then. The passage of the Fifteenth Amendment of the Constitution Act 1995 of the 17th of June 1996, provided for the dissolution of marriage. In public policy terms, it is difficult to underestimate the significance of this change. With the passage of the Amendment of the Constitution Act 1995, all public policy objections to the recognition and enforcement of foreign divorce decrees dependent on the constitutional ban, and articulated so forcefully in Mayo-Perrott, simply disappeared. The 1996 Act is a further element of public policy, because it sets out the grounds upon which an Irish court may grant divorce permits the grant of divorce on the basis of residency. This brought Irish law into line with the jurisdictional basis in other European, and indeed most western, countries. This also allows for the direct application of the principle in Travers v Holley and raises the question addressed in that case; what justification is there for refusing recognition to a decree granted on a jurisdictional basis which we ourselves exercise? The decision in Indyka, explicitly endorsed in J.W. v J.W., makes it clear that the question does not depend upon the state of Irish law at the time the divorce in question was granted, but rather at the time when recognition is sought for it. With respect therefore, I do not agree that there is no relationship between the grounds upon which jurisdiction to grant divorce is exercised and the grounds for recognition of a foreign grant of divorce. On the contrary, as is expressly recognised in Indyka and approved in J.W. v J.W., there is as Lord Wilberforce put it, a close and necessary relationship between the two.

  182. But even if it is right to distinguish between the jurisdiction to grant divorce and the jurisdiction to recognise a foreign decree, there is a third significant change in public policy since the decision in J.W. v J.W. .... That is the coming into force in Irish law of reciprocal rules for recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses contained in the Brussels II Regulation and in Brussels II bis. This Regulation applies to all member states of the EU with the exception of Denmark. The Regulation addresses recognition and adopts a general principle of recognising divorces granted on a number of bases, including residence. Not only does this apply as a general rule, and to what must be the bulk of divorces which Irish courts are required to recognise, but it applies specifically to the jurisdiction within which the divorce in this case was granted. This allows for a very close analogy to be drawn with the decision in J.W. v J.W. In that case, if the divorce in question had been granted in 1993 at the time of the decision in J.W. v J.W. it would have received recognition in an Irish court by virtue of the provisions of s. 5 of the 1986 Act. The effect of the decision in J.W. v J.W. therefore was to apply the law for recognition of contemporaneous divorces (which applied to them by statute) to earlier divorces, as a matter of common law, by applying the public policy embodied in the Act. By the same reasoning, if the divorce here had taken place in England in 2005, the Irish courts would unhesitatingly recognise it under Brussels II bis. Accordingly, while it may be said that extending recognition rules to pre 1986 residence based divorces is a larger step than the change effected in J.W. v J.W., the reasoning is indistinguishable.

  183. It appears therefore that the legal argument that public policy tends against recognition of the divorce in this case, relies on the terms of s. 5 of the 1986 Act as embodying a commitment to domicile as the sole ground for recognition. However, for the reasons set out above, I consider that that Act did not, even at the time, represent a strong adherence to the principle of domicile as a ground of general recognition of foreign divorces. Rather I think s.5 was seen as a relatively small qualification of a principle understood to apply as a matter of common law. In any event, it can no longer be said to represent present public policy in the light of the changes identified above. Accordingly, any fair consideration of the present policy of the court which both grants and recognises divorces on the basis of residence, should lead to a willingness to recognise this divorce. Such recognition is, as Blayney J. makes clear, in principle within the power of the courts, since it is a common law rule, is judge made and is not immutable, and such a conclusion would lead to the avoidance of limping marriages. Section 5 of the 1986 Act does not embody present public policy, but it may petrify it as of 1986 insomuch as it applies (exclusively) to foreign divorces between 1986 and 2000, and after that date to divorces in countries which are not member states of the European Union. But that might be a reason to limit rather than extend its operation.

  184. If it was clear that this was a matter under active consideration by the legislature, then it would be preferable that public policy would be embodied in legislation passed by the Oireachtas. However, as already observed, traditionally rules on recognition of foreign decrees have been a matter of judge made law in which legislative interventions are rare and sporadic. The 1986 Act was focussed on the narrow question of the removal of the domicile of dependency rather than any intention to legislate more generally for this area. Since 2000, Irish law on recognition of existing divorces has contained the significant anomaly, that an Irish couple who go and reside in another European country, and marry and divorce according to the laws of that country, will have their divorce based on residence recognised, whereas a similar couple going to the United States, Australia or Denmark, and who divorce, will not. Furthermore, a couple in the United States, Australia or Denmark, who were born there (or in any of the very many countries which now recognise residence based divorces) could marry and divorce at the same time as the Irish couple, and relocate to Ireland and have their divorce recognised. While the Constitution maintained an absolute ban on divorce it was understandable, and arguably required that Ireland should adopt a rule of recognition which did not permit circumvention of that ban and the values it entailed, even at the price of some dislocation between the law in friendly countries and the recognition rules applied in Ireland. A similar argument could have been made though with considerably less force given the strict terms (by international standards) for the grant of divorce permitted by the Constitution. However no such argument can be sustained now when divorces granted in Brussels II countries are routinely recognised. It is one thing to seek to refuse recognition to Irish spouses who relocate abroad and obtain a divorce, but there is no logic in affording recognition to bona fide divorces granted in Newry but not New York, Coventry but not Copenhagen. There is no public policy that I can discern to justify this distinction now. I would not interpret the absence of legislative alteration of the 1986 Act as a passive public policy endorsement of this anomalous situation, or as expressing a continuing perverse endorsement of a rule of recognition based on domicile. Instead the absence of legislation is consistent with the view that the recognition of foreign decrees, and in particular divorces, is not core legislative business.

  185. Accordingly, I would with respect, not agree that the judgment in G.McG. v D.W. is wrong, at least as a matter of legal analysis. On the contrary, approached on its own terms it is a humane decision and in keeping with the general and broadly admirable approach illustrated in the judgment of Kingsmill Moore J. in Mayo-Perrott and the majority decisions in Travers v Holley, Indyka and J.W. v J.W. .... Nevertheless I hesitate to endorse that decision and introduce one further twist into an already complicated area of law. The most cogent objection to the decision in G. McG. v D.W. may not be based on principle or precedent, but rather on pragmatism. The 1986 Act operates as something of an obstacle to a comprehensive reform of the law. So long as it is understood to exclusively govern post 1986 divorces (and that is the impact of the High Court decision in D.T. v F.L. [2009] 1 I.R. 434, albeit a decision which expressed approval of the principle in G. McG. v D.W.), and to continue to govern recognition of divorces in countries other than countries in the European Union, then even if this Court was to endorse the decision in G. McG. v D.W., it would lead to a still confusing patchwork of rules as to the recognition of foreign divorces. In the case, for example, of residence based divorces granted in the United Kingdom, the result would be that pre 1986 and post 2000 divorces would be recognised but not those granted between those dates (unless recognised by the law of the domicile of one of the parties). Nor do we know how many cases of pre 1986 divorces there are and their circumstances may vary widely.

  186. It can be said, and was said in K.D. v M.C. [1985] I.R. 697, that whatever the merits of the rule, people may have altered their affairs on faith of an understanding of their position, which should not now be disturbed. I agree that this argument has weight. However it is worth pointing out that the effect of the acceptance of the analysis of Kingsmill Moore J. in Mayo-Perrott, was to afford recognition to foreign divorces previously considered not to be recognisable. Similarly the decision in J.W. v J.W. had the effect of affording recognition to a class of foreign divorces (those based on the domicile of a wife) previously considered ineffective in Ireland. Furthermore there has been uncertainty about this specific issue since at least 2001, so no one could have had a completely settled expectation as to the applicable law. It is also necessary to distinguish between the different ways in which people may have acted on faith of their foreign divorce, or on the belief that such divorce was not capable of recognition. Since it is I think rare that people actually seek to have a limping marriage it will most often be the case that the steps taken in Ireland will be to seek an Irish divorce merely to confirm the status of the parties. Even in such a case recognition of the earlier foreign divorce might be more beneficial since it would avoid the cost and stress of further proceedings, and be in accordance with the way in which the parties have lived their lives. Indeed where the foreign divorce was followed by a foreign marriage, recognition of the validity of the divorce would be preferable since a later Irish divorce would not succeed in completely regularising the position since Irish law would (on this hypothesis) still consider the second marriage bigamous. This is not a fanciful proposition; it is what occurred in the G.McG. v D.W. case. But it becomes more problematic if the actions on faith of an understanding that a foreign divorce will not be recognised go beyond the question of status and involve financial matters. Sometimes that is entirely appropriate, and it is noteworthy that the Family Law Act 1995 (“the 1995 Act”) permits financial adjustment be made in respect of foreign divorces post dating that Act. However this is a consideration that does not point all one way. It might be said that a person who advances a claim to the estate of their deceased former spouse notwithstanding a foreign divorce, or who now seeks new provision to be made notwithstanding a settlement or orders made inter partes in the foreign proceedings is, at some level, acting on faith of an understanding of the legal position, but it is less clear that it would be wrong to disappoint such an expectation. I do accept however that the possibility of parties having acted on faith of an existing understanding of the law is a valid argument against change, or at least a blanket rule. Given the wide range of fact situations which developed over the last quarter of the 20th century in particular, it seems to me that there is scope for adopting a more nuanced rule (whether by judicial decision or by statute) which does not necessitate a blanket acceptance or denial of validity and would allow some consideration of the individual merits of each case to be sufficiently clear to allow application without resort to court in each case. In that case the question may become, what should be the general rule to which there might be exceptions.

  187. Estoppel

  188. The question of estoppel, whether by record or by conduct, arising from the fact that a party has sought and obtained a foreign divorce has long been debated in Irish law. It has been the subject of two important Supreme Court decisions, Gaffney v Gaffney, and C.K v J.K. [2004] 1 I.R. 224, and a number of insightful comments by authors in the fields of both family law and constitutional law. In Gaffney v Gaffney, a wife domiciled in Ireland, was forced by duress to apply for and obtain a divorce in the United Kingdom on what was an untrue assertion of residency. In C.K. v J.K., an Irish man fraudulently obtained a divorce in Ohio, and then purported to marry the plaintiff in a registry office ceremony describing himself as a bachelor. They lived together as husband and wife for about 17 years and had two children. When the relationship broke down and the wife applied for, as she thought, judicial separation and relief, she was met by the contention on behalf of the man she thought was her husband, that in fact he was not validly divorced, and accordingly their own marriage was invalid, adulterous, and for good measure, bigamous.

  189. In Gaffney v Gaffney the High Court and the Supreme Court unanimously held that the plaintiff wife was not precluded from asserting the invalidity of the English divorce which she had sought, albeit under duress. Once she wished to demonstrate that it was obtained by duress, it could not be said that any estoppel by record arose. This was the basis of the decision of Henchy J. with whom Griffin J. agreed. In his judgment Walsh J. (with whom O’Higgins C.J. agreed), went considerably further (as had Kenny J. in the High Court) and held that estoppel could never arise in the case of marriage since marriage was a matter of status, and a status to which somebody was not entitled to by law, could not be achieved by the principle of estoppel. The remaining judge, Parke J., merely agreed and so there is no version which commanded a majority. It is probably true however to say that the broader statements of Walsh J. have tended to be treated subsequently as stating a general principle and indeed the ratio decidendi in that case.

  190. Notwithstanding the apparent understanding of that decision, the argument that there was some place for the principle of estoppel in this area, and more particularly where it was related not directly to questions of status but rather to financial matters such as a claim to participate in the estate of a deceased former spouse, notwithstanding a foreign divorce, continued to be made. See for example the influential article by Mr William Duncan, “Desertion and Maintenance” ((1974), 9 Ir. Jur., 2, 321 – 325) and comments to the same effect in Binchy, Irish Conflicts of Law (Dublin; Butterworths; 1988) page 288-289. These matters are fully discussed in the case of C.K. v J.K. and for reasons which will appear later, I do not think it is necessary to outline the arguments in any greater detail. The argument in favour of some limited role for the principle of estoppel also relies on the fact that such principle was applied in a number of states in the United States and was articulated in the influential Restatement (Second) Conflict of Laws (1971) (paragraph 74) and also in the law of Canada, and in particular the judgment of Laskin J. in Downton v Royal Trust Co. (1972) 34 D.L.R. (3d) 403. Furthermore, statements that such a principle may be available in Irish law were made obiter by Egan, O’ Hanlon and Fennelly JJ. in different cases. In C.K. v J.K. the Court comprehensively reviewed these arguments and while expressing varying degrees of regret, the Court unanimously rejected the claim of estoppel made in that case. It is worth noting in passing that McGuinness J. referred to the law on recognition of foreign divorces and said (para 174):

  191. .... I would find it difficult to be swayed by any argument in the present proceedings based on the desirability of certainty regarding matrimonial status. Certainty may well be desirable, but it does not at present exist.

  192. In the end she concluded that it was not satisfactory that the Court deal with the complex and anomalous situations on a case by case basis whether through the principles of estoppel or otherwise. She continued (para 175):

  193. It would be preferable that legislation be enacted both to create a clear and consistent code of recognition and to provide a remedy for persons who through no fault of their own had become parties to a marriage which later proves to be invalid.

    These forceful observations, which apply with, if anything, greater force today have not however led to any legislative initiative or policy review.

  194. The judgment of Fennelly J. (at paragraph 232) did seem to leave open the possibility of the principle of estoppel applying in matters not directly effecting marital status. At paragraph 232 of the judgment (page 294) he said:

  195. I am prepared to accept, as a hypothesis, the argument propounded by Mr Duncan in his Irish Jurist article .... as the first respondent in this case has done, should, as a matter of general principle, be precluded by the doctrine of estoppel from proving the invalidity of the divorce obtained by him from a foreign court on concocted and fraudulent evidence, where his object is to obtain an unfair advantage over another or where he seeks a specific remedy. The real question is to identify the sort of advantage or remedy which he should be precluded from getting. If, for example, he were to seek recovery of sums paid on foot of the divorce decree, or otherwise to readjust property ownership with his lawful wife, the plea might have merit. Such a spouse might, depending on the circumstances, find it difficult to maintain a claim to share in the estate of this deceased lawful wife. It will be recalled that Walsh J. was of opinion that, if it had not been for the duress, the plaintiff in Gaffney v Gaffney [1975] I.R. 133, would have been bound to apply to the English court to set aside the divorce decree. None of those situations, however, so directly affect marital status as does this one.

  196. Particularly in relation to pre 1986 divorces, were there may be a relatively discrete and finite number of cases which are now contentious and which may have very different fact situations, I must admit that I see some attraction to the flexible principle of estoppel as appears to have been contemplated at different times by Henchy, Griffin, Egan and O’Hanlon Fennelly JJ., in the academic writings already referred to, and in the decisions of the courts of the United States and Canada. It might for example allow a more nuanced approach even in the present case. I recognise that some of the judgments in C.K. v J.K. considered that the Court was bound by the broader statement in Gaffney v Gaffney, and could not depart from it unless in accordance with the jurisprudence in Mogul of Ireland v Tipperary (N.R.) County Council [1976] 1 I.R. 260. Gaffney v Gaffney is in my view a little more nuanced in that the judgment of Walsh J. which, while deserving of considerable respect, does not I think represent a binding ratio decidendi. Furthermore, this case is distinguishable from both Gaffney v Gaffney and C.K. v J.K. in an important respect. Both those cases involved foreign divorces which were completely invalid because obtained by duress on the one hand, and fraud on the other. Here however, it is common case that the position is more complex since the divorce is plainly valid under the law of the UK where moreover, the appellant made her life for more than 20 years. It was not argued in any detail in this case, and as matters have transpired my views are in the minority in the Court, but I would for my part have reserved the question of whether foreign divorces, which are valid and unimpeachable in their country of origin, could be the basis for a plea of estoppel at least in relation to financial matters. However it is open to the legislature to introduce an element of flexibility whatever the rule of recognition adopted in relation to pre 1986 divorces, should that be considered desirable from a public policy perspective. That might mean a rule of recognition of foreign divorces with a provision akin to the 1995 Act permitting ancillary relief to be granted at the discretion of the Court. Alternatively it could be a rule of recognition of only domicile based divorces, but permitting a court greater discretion to refuse or limit purely financial claims based on the non-recognition of a foreign divorce valid by the law of the granting state and given on a jurisdictional basis itself not contrary to Irish public policy.

  197. However the Court here must make a principled decision between two different bases of recognition exemplified in two contrasting High Court cases: G.McG. v D.W. (which recognised divorces based on habitual residence) and M.E.C. v J.A.C. [2001] 2 IR 399 (which recognised divorces based only on domicile). It is worth adding that the G.McG. v D.W. approach does not preclude or exclude the recognition of divorces based on domicile but would permit wider recognition of divorces based on habitual residence. I respectfully express my preference for the approach in G.McG. v D.W. even in the legal context in which both cases were decided. Furthermore, it is clear that M.E.C. v J.A.C. was decided in advance of the coming into force of the Brussels II Regulation. Indeed it appears that Kinlen J. understood that adoption of that ground of recognition of foreign divorces would require the approval of the people in a referendum. If indeed that were so, it would itself be a strong reason not to seek to anticipate the result, by way of a judicial declaration of public policy. That assumption was however, incorrect. Furthermore, the fact that Brussels II bis now represents the law in Ireland in respect of a very large number of countries is in my view a very strong reason pointing in favour of recognition. The entry into force of Brussels II and Brussels II bis significantly undermines the one attraction the rule proposed by Kinlen J. would have, which is that of providing a certain and consistent rule for all foreign divorces. That may have appeared possible at the time of the decision and on the assumptions made in it but it is not possible now. Even if this Court adopts a rule of recognising only domiciled based divorces pre 1986, divorces post 2000 granted by Brussels II countries will continue to be recognised on the basis of residence. Of course the same objection might be made in reverse: so long as it is accepted that the 1986 Act is understood as precluding the possibility of common law recognition of post 1986 divorces on the basis other than domicile, an issue which has not arisen in this case (and upon which I do not wish to be taken to express any concluded view), then there cannot be a single rule of recognition on the basis of residence. But if that is so, the Court must then choose which should be the rule and which the exception. It seems to me that there are good reasons now not to give greater scope to the domicile basis of jurisdiction than is absolutely necessary.

  198. Before addressing those reasons in greater detail, I should however address the suggestion in M.E.C. v J.A.C., that to adopt or endorse a rule of recognition on the grounds of habitual residence, would amount to judicial legislation. The 1986 statute is the only entry of the Oireachtas into the field of recognition of foreign divorces since the foundation of the State. In its own terms it explicitly only addresses divorces granted after that date. It follows therefore, that pre 1986 divorces are governed by common law. Such law was of course made by judges, and moreover Victorian English judges. I do not think those decisions could be properly described as judicial legislation, which I understand to be an improper interference into a field controlled by the legislator or the alteration, under guise of interpretation, of a law enacted by the Legislature. Indeed it seems to me that in truth this has largely been a field governed by the common law. The very fact that the 1986 Act does not seek to address the pre 1986 situation, or address grounds for recognition more generally could be seen to amount to a statutory endorsement of the principle that this area at the very least should continue to be governed by common law principles. Furthermore the terms of the Act are limited and guarded. For the previous (common law) rule a new rule is substituted. There is nothing to suggest an intention to render this area the sole preserve of legislation. For example nothing is said about grounds for non recognition, such as fraud, or public policy which is for example, provided for in ss. 2 and 3 of the Adoption Act 1991 and s. 57 of the Adoption Act 2010 dealing with the comparable area of recognition of foreign adoptions.

  199. The common law as identified above, is not immutable and subject to change in the light of present public policy. I could not agree that to permit common law principles to continue to regulate an area which had always been so regulated, should be regarded as an impermissible interference in a field either consigned, or better left, to the legislative branch of government. I am conscious of the arguments that the development of the common law by judicial decision is necessarily limited. In Holmes’ phrase “they [judges] can do so only interstitially; they are confined from molar to molecular motions”: Southern Pacific v Jensen 244 U.S. 205,221 (1917). But I think it is useful distinguish this clearly from any consideration of the separation of powers. Holmes’ statement can apply, and is regularly invoked, in common law jurisdictions which have no written constitution, most notably the United Kingdom. The separation of powers is a constitutional doctrine, and means in this context that, while the judiciary is the least dangerous branch of government, it does set and enforce the limits of the range of powers of the other branches, and an important corollary is that the judiciary should be particularly careful to ensure that it does not overstep the boundaries of its power under the Constitution. Those boundaries are set either expressly or by implication in the Constitution, and once identified, the prohibition is clear, absolute and mandatory for any judge appointed under the Constitution. It is not a matter of choice, restraint or self denial. The question of the boundaries set by the principle of separation of powers arises most sharply in the field of Constitutional interpretation.

  200. The limits of possible judicial development of the common law are more blurred. The identification of such limits may be said to flow form a conception of the judicial function, such as a the limitations imposed by the facts of the individual case, the fact that a court can only decide the individual case, that the range of remedies available to a court are limited to the individual decision, and that the principle of precedent is an important part of the system of law. In that sense the limits on development of the common law can be said to be constitutional at some level. But I do not think it is helpful to apply the label of separation of powers to this question. Here the recognition of foreign divorces has always been understood to be a matter properly within the scope of the common law. Furthermore in so much as that law, whether contained in statute or case law, requires reference to public policy then it is inevitable that such conceptions may change over time, and that this is required to be reflected in decisions. The development of the rule of domicile, the sub-rule of domicile of dependency, the analysis of the grounds for recognition in Mayo-Perrott, the decisions in Travers v Holley, Indyka and J.W. v J.W., and indeed the expression of doubt as to the whether J.W. v J.W. is correct in holding that recognition is to be decided in the light of present day public policy, are all in my view properly part of the judicial function and the common law. The fact that an area may be the subject of legislation if the Oireachtas considers appropriate, does not render it off limits for judicial decision in the absence of legislation. Nor do I think J.W. v J.W. can be correctly characterised as solely a Constitutional decision; the decision that the common law doctrine of the wife’s dependent domicile did not survive the coming into force of the Constitution was, of course, a decision on constitutional analysis and interpretation. But that simply struck down the rule. The decision to replace it with a rule of domicile of either spouse was a matter of pure common law not influenced in any way by the Constitution. On the other had I do not see R. v An tÁrd Chláraitheoir [2014 IESC 60 as involving any question of the limits of the development of the common law; it was a question of statutory interpretation, against the background of the double construction rule, and a constitutional challenge, all of which is part of the judicial function and, arguably, the constitutional duty of the judiciary.

  201. In my view there is as a matter of principle no difference between what was done in J.W. v J.W., what was done in G. McG. v D.W.,: both cases involved the rule of recognition to be applied to pre 1986 foreign divorces by reference to present public policy. In each case foreign divorces which were not recognised may now be. Of course I accept that the impact of the decision in G. McG. v D.W. may be greater than that of J.W. v J.W., and that people may differ as to the desirability or wisdom of making any change, but that is a matter of prudence rather than principle, and certainly not, in my view, an issue touching on the separation of powers. One test is that any decision this Court may make in this case can be altered, overturned or endorsed with or without qualifications by the Legislature, and the courts would be bound to apply any such legislation. That is a natural part of the communication and cooperation between the respective branches of government and is an example of the separation of powers functioning as intended. Those cases which give rise to most concern on separation of powers grounds are where the effect of a judicial decision, normally on the interpretation of the Constitution, is to preclude legislative or executive activity in the field. Plainly that is not the case here.

  202. The 4th edition of Shatter’s Family Law (Alan Shatter; Dublin; Wolfhound Press; 1997; 4th ed.), which predated the Brussels II Regulation, sets out some powerful arguments for change to a general rule of recognition of residence based divorces whether by statute or judicial decision. This is but one example of a fairly consistent stream of commentary, criticising the state of the law. A thoughtful article by McNamara and Martin, “Brussels Calling: The Unstoppable Europeanisation of Irish Family Law” ((2006), The Irish Journal of Family Law, 3, 18-21, p.1), sets out views of two former ministers for justice on the unsatisfactory state of Irish law and the desirability of introducing habitual residence as a basis of recognition. The same article quotes Mr Shatter, as describing Irish law on recognition of foreign divorces as “.... a shambles. It is unnecessarily complex, uncertain, bizarre and irrational and gives effect to no coherent social policy”. I do not see any basis for assuming that the Oireachtas intended this result, still less that any alteration of the common law could properly be described as judicial legislation. I can find no expression of a view that the current state of the law is desirable.

  203. If the choice is to be made, I see no basis for extending the area where foreign divorces can only be recognised on the basis of domicile since many other countries (including Ireland) have moved to less restrictive grounds for jurisdiction for granting divorce (and indeed for recognising it). There is no reason to consider the principle of domicile as an intrinsically attractive or effective test for jurisdiction. On the contrary, domicile as a test for recognition has its basis in Victorian law at a time when British subjects travelled throughout a far flung empire. In Indyka Lord Reid traced the principle to the decision in Le Mesurier v Le Mesurier [1895] A.C. 517, which considered that there was a universal rule that matters of status should be determined by the courts of the country of the party’s domicile and endorsed the dicta of Lord Penzance in Wilson v Wilson [1872] L.R. 2 P. & D. 435 that adoption of this rule at common law would mean that (page 442 of Wilson v Wilson and page 79 of Indyka):

  204. .... the differences of married people should be adjusted in accordance with the laws of the community to which they belong, and dealt with by the tribunals which alone can administer those laws. An honest adherence to this principle, moreover, will preclude the scandal which arises when a man and woman are held to be man and wife in one country, and strangers in another.

  205. But Lord Reid continued (page 64 of Indyka):

  206. My first comment is, that, although the English courts honestly adhered to that principle until parliament had to intervene, that did not in fact preclude the scandal of limping marriages, and the reason is not far to seek. From the wording of the judgment it seems to me that in laying down this test their Lordships must have thought that they were keeping in line with the practice in other civilised countries. But in fact they were not. Their view has been followed in the Commonwealth, but so far as I know nowhere else. So far as I have any knowledge of the matter the position appears to be (and to have been in 1895) that most European countries attach more importance to nationality or sometimes residence, and in the United States most if not all of the states, by permitting the wife to have a separate domicile for this purpose, do not regard the court of the husband’s domicile as the only court which has jurisdiction. But I would find it surprising if their lordships really thought that they were keeping in line with other countries. It is just possible that they were actuated by the hope, common in Victoria times, that if England showed the way, others would see the light and follow: if so, any such hope has been grievously disappointed.

  207. In the event, the House of Lords abandoned domicile as the sole basis of recognition in favour of the “real and substantial connection” test outlined in Indyka. In due course and shortly thereafter, the UK legislature followed suit and adopted a test of habitual residence. Domicile as an exclusive basis for recognition lost any claim to the universality of approach which was its major perceived advantage, by the early 1970s and has been replaced, or more correctly added to, by habitual residence in most if not all of the countries with which Irish citizens and residents have contact. Domicile remained a part of Irish law thereafter, not because of any intrinsic merit, but because it was consistent with the public policy of prohibition on divorce which was part of the Constitution until 1996. In my view, it would be strange if Ireland was to become almost the last country to seek to continue to apply domicile as the only ground for recognising foreign divorce, when it can have no hope of achieving the object of uniformity among states which led to its adoption, and has been abandoned by both the courts and legislature of its country of origin, and when retention must necessarily increase the opportunities for limping marriages. For my part I would wish that this Court would do what is within its power to limit the unnecessary distress and cost occasioned to Irish domiciled parties. I would take a first step in this case by holding that public policy does not require courts to refuse recognition to bona fide divorces granted on the basis of habitual residence. I recognise however that the majority of the Court considers that a different view must be taken. I readily acknowledge the force of the reasoning which has led my colleagues to this conclusion which I unhesitatingly accept. Any change is accordingly a matter for legislation. I wish accordingly to express my respectful agreement with the observation of Dunne J. that:

  208. it is desirable to reconsider the legislative position in relation to this difficult issue so that there could be, so far as is possible, a uniform approach to the recognition of foreign divorces. After all, people are surely entitled to have certainty as to their marital status.

  209. Accordingly, I would answer the first question in the case stated “yes” and the second and third questions as follows:

  210. It is sufficient if the applicant for the divorce would comply with the provisions contained in Article 3 of Council Regulation (EC) No 2201/2003 (Brussels II bis).


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