Supreme Court partially allows appeal on foreign divorce recognition, dissenting judge argues for habitual residence test.

THE SUPREME COURT

Appeal No: 8/2010

Denham C.J.

Hardiman J.

O’Donnell J.

Clarke J.

Dunne J.

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

AND

IN THE MATTER OF A CASE STATED TO THE SUPREME COURT

Between/

MH

Applicant/Appellant

And

GH

Respondent

And

The Attorney General

Notice Party

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

Introduction

1. I have had the considerable advantage of reading the judgment delivered by Ms Justice Dunne in this matter and I gratefully adopt

both her statement of the facts in this case, and outline of the applicable law. While I acknowledge that this is a complex issue upon

which judges in this jurisdiction and others have taken different views, I have reluctantly come to a different conclusion to Dunne J.

for reasons which I hope to make clear. This is a finely balanced and issue and I fully recognise the force of the arguments, and the

good sense, contained in the judgments of my colleagues, and the practical merits of the result on which the majority of the Court is

agreed. I have given some thought to whether there is any advantage in expressing a contrary view. I have come to the conclusion

that since we are all agreed that it is highly desirable that the matter should be addressed in legislation, there is some merit in

expressing my views on an area which is both a difficult area of law and the source of considerable difficulty and uncertainty for

those unfortunate enough to find their lives affected by it.

2. There are perhaps three points upon which I would respectfully differ in my analysis of the law from the approach taken in the

majority judgment. First: I do not agree that s. 5 of the Domicile and Recognition of Foreign Divorces Act 1986 (“the 1986 Act”) fixes

public policy for the purposes of recognising (or refusing to recognise) a foreign divorce obtained prior to 1986; second, it follows that

I consider that to adopt a rule of recognition of foreign divorces granted on the basis of habitual residence, would not conflict with

present public policy; and, third: I do not agree that an inconsistency between the jurisdictional grounds for the grant of divorce, and

the jurisdictional basis for recognising foreign divorces, is not a reason for modifying the common law rule. Instead, I consider it is one

powerful reason to consider adjusting our rule of recognition, and indeed was so recognised by this Court in J.W. v. J.W. [1993] 2 I.R.

476. I consider that the law as articulated by this Court in that case is that recognition of foreign divorces, at least those granted

prior to 1986, is a matter of common law, which is not immutable and is to be determined by the courts in the light of present public

policy. In applying that test, I would, for reasons I will elaborate on shortly, give less weight to the provisions of s. 5 of the 1986 Act,

and greater weight to the provisions of Family Law (Divorce) Act 1996 (“the 1996 Act”) which set out the grounds upon which Irish

courts are now empowered to grant divorces based on residence as well as domicile and to Council Regulation (EC) No. 2201/2003 of

27 November 2003(“Brussels II bis )repealing and extending Regulation (EC) No 1347/2000 so that Ireland now recognises divorces on

the basis of habitual residence (as well as domicile and other jurisdictional grounds).

3. Since at least the conflicting High Court decisions in G.McG. v. D.W. [2000] 1 I.R. 96 (recognition on basis of residence as well as

domicile) and M.E.C. v. J.A.C. [2001] 2 I.R. 399 (recognition only on basis of domicile) there has been confusion as to the grounds of

recognition of pre 1986 foreign divorces in Irish law, which this case must resolve. In arguing for a rule of recognition based on the

domicile of either party to the marriage, the respondent and notice party both seek to apply the test set out in the 1986 Act for post

1986 divorces (as indeed was the consequence of the decision of the majority of the Supreme Court in J.W. v. J.W.) to pre 1986

divorces. This however has the consequence of extending the range of the domicile recognition rule. At the level of principle, I see no

benefit in that. It is clear to me that the policy of recognising only domicile based divorces has no intrinsic logic or merit and is

inconsistent both with the basis upon which Irish courts now themselves grant decrees of divorce and since 2001, have recognised

divorces obtained in other member states of the European Union (which must be the majority of divorces which the Irish courts are

asked to recognise and enforce). Continued adherence to a domicile based recognition system for post 1986 divorces in non Brussels

II bis countries can only increase the number of limping marriages. The merit in the rule of recognition on the basis of domicile is

certainty and predictability that a clear rule provides and the possibility (impossible to assess and perhaps improbable in the light of

the considerable uncertainty attending this area) that individuals may have arranged their affairs and acted on the basis that such a

rule of recognition would be applied. I accept that these are considerations of some weight but they do not point decisively to one

outcome: the fact is that the present Irish law on recognition of foreign divorces is anything but certain, and will not be uniform

whatever the outcome of this case.

4. The 20th century has seen very considerable social change, not least in Ireland in relation to the status and importance of

marriage, and the availability and acceptability of divorce. The same period has seen greatly increased international mobility. Every

time there is a gap between the law in one country and another, and in particular the jurisdictional basis for the grant of divorce in

one country and the rule of recognition in another, there is a risk, indeed almost an inevitability, of what the case law describes,

correctly, as the scandal of limping marriages, the fact that the marital status of persons would be different depending on location. A

marriage considered dissolved in one jurisdiction may be considered subsisting in another. When, as often happens, divorce is followed

by subsequent remarriage (and possible subsequent divorce) considerable complications ensue. In theory if one jurisdiction (in this

case Ireland) does not recognise the original divorce, then logic compels it to consider any subsequent remarriage as bigamous (which

is both a crime and for good measure an extra territorial offence) and adulterous. These are heavy burdens to impose upon real

people already struggling with the human cost of marital breakdown. Some element of this is unavoidable, unless all countries

recognise divorces granted by every other country, and that is not possible or necessarily desirable. But any sensible and humane

legal system seeks to minimise the area for difference and thus the number of limping marriages. Most countries readily recognise

divorces granted on a jurisdictional basis which the recognising country itself claims, and also allows a certain margin of appreciation,

for local differences. If the jurisdictional basis is not fundamentally at odds with the values of the recognising country, the desirability

of avoiding limping marriage, and a commendable unwillingness to insist that other countries adopt rules identical to those of the

recognising country, will encourage recognition. Here however, the position is that the rule of recognition argued for by the

respondent and notice party puts Ireland at odds with the jurisdictional basis favoured by most developed countries for the grant of

divorce (and moreover a jurisdictional basis which Ireland itself applies) and thus creates continuing opportunity for limping marriages.

While lawyers may find it possible to conceive of marriage as valid in one jurisdiction but not existing in another, and can conceive of

ways sometimes costly and time consuming, in which that decision can be ameliorated or possibly regularised, this exacts a high price

in human terms. I do not think it is easy in real terms to live schizophrenic existence on a matter as fundamental to one’s own sense

of oneself as marital and family status. The problems created are real and difficult but are individual, isolated and private. For

whatever reason there has been little legislative change despite calls for such change from many quarters. Instead, cases tend to

arise on a case by case basis in litigation, and the courts both in this jurisdiction and elsewhere have shown ingenuity and some

subtlety in attempting to ensure a measure of flexibility and adaptability in the applicable law and in limiting unnecessary legal

complexity and human distress.

5. 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.

6. 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.

The Development of Irish Law on Recognition of Foreign Divorces

7. 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.

8. 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.

9. 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):

“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.”

10. 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.

11. 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.

12. 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:

“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.”

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

“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.”

13. 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).

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

“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.”

At page 84 he said:

“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.”

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

“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.”

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

“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.”

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

“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.”

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

15. 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.

The Domicile and Recognition of Foreign Divorces Act 1986

16. 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.

The decision of the Supreme Court in W v W

17. 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.

18. 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:

“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.”

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

Estoppel

25. 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.

26. 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.

27. 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:

“…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.” (paragraph 174)

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:

“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.” (paragraph 175)

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

policy review.

28. 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:

“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.”

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. 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:

“… 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”. (page 442 of Wilson v. Wilson and page 79 of Indyka)

But Lord Reid continued:

“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.”(page 64 of Indyka)

37 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:

“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.”

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

“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).”