Is a foreign divorce recognised in Ireland? The three sets of rules and what to do when it is not

Whether Ireland treats you as divorced depends on where the decree was granted and on the connection you or your former spouse had with that country at the time. There are three sets of rules, one each for the EU, the United Kingdom and everywhere else. A divorce that passes ends the marriage here exactly as an Irish decree would. One that fails leaves you married in Irish law: you cannot validly marry again here, your former spouse keeps a spouse's rights on your death (see Your will after divorce in Ireland: what changes, what does not, and the section 18 claim), and a settlement reached abroad may not be the end of the matter.

The three sets of rules

EU divorces

Within the EU, recognition is automatic. Article 30(1) of Brussels II-ter says that a decision given in a member state "shall be recognised in all other Member States without any special procedure being required". You do not apply to anyone. Recital 96 records that Denmark does not take part, so a Danish divorce is tested under the 1986 Act like any non-EU decree.

UK divorces

The Family Law Act 2019 had a Part 3 for a disorderly Brexit; it was repealed on 17 December 2020 and never applied. What applies now is Part 19 of the 2020 Act, which keeps recognition on the basis of habitual residence rather than the domicile rules used for non-EU states. Section 126 recognises a divorce, legal separation or annulment granted in England and Wales, Scotland, Northern Ireland or Gibraltar where, when the proceedings began, the spouses were habitually resident there, had last been habitually resident there and one still lived there, the respondent was habitually resident there, the applicant was habitually resident there and had lived there for at least a year, or either spouse was domiciled there. Section 125 preserves recognition of UK divorces already recognised under the EU rules. The 1986 Act's domicile test does not apply to divorces covered by either section.

Everywhere else: the 1986 Act

Section 5(1) of the Domicile and Recognition of Foreign Divorces Act 1986 replaced the old rule, under which a divorce was recognised only if both spouses were domiciled in the granting country, with a rule that it is recognised if granted in the country where either spouse was domiciled. It applies to divorces granted after the Act commenced, three months after it was passed on 2 July 1986. Since section 1 of the same Act, a wife's domicile no longer follows her husband's.

Domicile is not residence

Domicile is the country you regard as your permanent home, the place you intend to return to, and it does not change just because you live somewhere else for years. An Irish person who spent six years working abroad, divorced there and came home may well have kept an Irish domicile throughout, in which case the divorce would not pass section 5 unless the other spouse was domiciled in that country. Where domicile is in doubt, so is the divorce.

Settling a doubtful case: a section 29 declaration

Section 29 of the Family Law Act 1995 lets the court declare that a marriage was valid at its inception, that it did or did not subsist on a given date, or that a foreign divorce, annulment or legal separation is, or is not, entitled to recognition in the State. Either spouse can apply, as can any other person the court considers has a sufficient interest. The court can only make the declaration if one of the spouses is domiciled in Ireland on the date of the application or has been ordinarily resident here throughout the year before it. Under section 38 the Circuit Court has jurisdiction concurrently with the High Court, so most applications go to the Circuit Court.

If the divorce is not recognised

You are married in Irish law, whatever the granting country says; lawyers call this a limping marriage. The remedy for most people is an Irish divorce. Section 5 of the Family Law (Divorce) Act 1996 requires that you have lived apart for at least two years in the previous three, that there is no reasonable prospect of reconciliation, and that proper provision is made. The years already spent apart count, so many people in this position qualify at once. How long do you have to be separated before divorce in Ireland? The two-in-three-years rule explains how the period is counted, and How divorce works in Ireland, step by step covers the application.

Do not marry again in Ireland on the strength of a foreign decree you are unsure about. If the divorce turns out not to be recognised, the second marriage is not valid.

Money after a recognised foreign divorce

A foreign court may have ended the marriage without dealing with Irish property or an Irish pension. Part III of the Family Law Act 1995 lets an Irish court make financial orders after a foreign divorce or legal separation, with limits. Section 23 applies only where the foreign divorce or separation "is entitled to be recognised as valid in the State". You must first get the court's leave, which it will not grant "unless it considers that there is a substantial ground for so doing" and one of the conditions in section 27 is met: a spouse was domiciled in Ireland at the application or when the foreign divorce took effect, a spouse was ordinarily resident here for the year before either date, or a spouse has a beneficial interest in land in the State. Section 26 then requires the court to ask whether Ireland is the appropriate venue, weighing the spouses' connection with each country, what the applicant already received abroad, whether relief is still available there, what property is here and how much time has passed.

The orders available are those a court can make on judicial separation, including property adjustment, maintenance and pension adjustment orders. Pensions are the usual reason people use Part III, because Irish trustees act only on an Irish order; see Pension adjustment orders in Ireland: how a court splits a pension on separation or divorce.

Remarrying in Ireland after a foreign divorce

When you give notice of a marriage, the registrar will ask for evidence of the foreign divorce and must be satisfied that it is recognised here before the marriage can proceed. Where the position is not clear, a section 29 declaration is what settles it. Allow for this well before any wedding date.

Where this leaves you

If your foreign divorce passes one of the three tests, you are divorced in Ireland. If it does not, or you cannot tell, the practical route for most people is an Irish divorce. The earliest divorce date tool works out when you can apply from the dates you already have. A recognition question, a Part III application or a doubtful domicile is work for a family law solicitor; the solicitor page explains how to be put in touch with one.