Many people assume that foreign divorces have been automatically recognised since the Republic introduced divorce, six years ago. They could be in for a shock, however - and be especially vulnerable when a spouse dies or a marriage breaks down

This month sees the sixth anniversary of the introduction of divorce in the Republic, and the numbers availing of it, while not as spectacular as expected, are substantial and growing steadily. Following a number of judgments in the Supreme Court, Irish law on divorce is becoming clear as well as available.

Before the introduction of divorce, some couples sought divorce outside the jurisdiction. If one or other partner is resident abroad, some still do. Given that divorce is available here, many people think such divorces are now recognised under Irish law and that marriages contracted following them are valid.

This may not be so. And if people remarried abroad following foreign divorces that are not recognised here, they can find themselves in very vulnerable positions after the death of the spouse or the breakdown of the marriage.

They will have the status of unmarried co-habitees and will have no maintenance rights following marriage breakdown, no inheritance or pension rights following the death of the spouse and no rights to family homes unless they were in joint names and willed to them. If property is bequeathed to the "spouse" in a will, he or she may face inheritance tax as if they inherited from a stranger. If there are substantial assets apart from the family home, this person will have no claim to them.

The children of the relationship will, of course, have maintenance and inheritance rights, as the distinction between children born inside and outside marriage has virtually been abolished.

Ann FitzGerald, a Cork-based solicitor and member of the Law Society's family law and civil legal aid committee, has come across a number of cases where marriages presumed valid following foreign divorces turned out not to be. She points out that the legality of foreign divorces depends on a concept called domicile.

"Domicile is a strict test and presents a high hurdle to jump in terms of proof," she says. "It has been described as a 'permanent intention to reside' outside the country, having cut all ties with Ireland. It certainly does not cover someone who makes a quick trip abroad to seek a divorce, or may not even cover someone who has worked abroad for a number of years. There's an increasing number of cases coming before the courts where much time is spent analysing where a person has lived, their intentions, and examining their actions both prior to and post the divorce to determine this issue."

She warns anyone with a foreign divorce to have its status checked by a solicitor. This can be done either by bringing an application to the Circuit Court for determination of the status of the foreign divorce or, if this is not successful, by seeking a fresh Irish divorce from the first spouse.

Geoffrey Shannon, who teaches family law at the Law Society and sits on an EU committee considering the harmonisation of family law across member states, points out that three regimes govern foreign divorces in the Republic.

The first applies to foreign divorces obtained before 1986, when the strict domicile test applied, but only where the husband had established a domicile abroad, as a wife's domicile was held to be that of her husband.

Then the 1986 Domicile and Recognition of Foreign Divorces Act allowed either spouse to claim domicile in the country in which they lived, if either was living abroad. A recent High Court judgment has broadened this somewhat to suggest that a foreign divorce obtained in a state with a divorce regime similar to ours may be recognised.

The third regime relates to EU citizens only and came in under the 2001 EU Brussels II Convention. This provides for the mutual recognition of divorces obtained in different EU member states, but Shannon points out that a number of other issues, like ancillary orders on questions such as that of maintenance, remain unclear. He also warns that harmonisation may become more difficult after 2004, with the accession of new member states, including Poland and Malta. Poland has a very restrictive divorce regime; Malta does not permit it.

Brussels II also provides for the state in which the first application for divorce was made to "own" and process the case, even though its law on divorce may differ from Irish divorce law.

So if one party was living in, say, France, a divorce could be sought there without waiting for the four years' separation required under Irish divorce law.

But this mutual recognition does not apply outside the EU. If a divorce is obtained in the US, for example, the old domicile rules still apply. If a "quickie divorce" is obtained in a country with very lax divorce laws, it is unlikely to have any validity in the Republic.

The problem is most acute where people obtained divorces and remarried abroad. If a person who was previously married and divorced abroad wishes to remarry in the Republic, the registrar of births and marriages will issue a licence to marry only if he is satisfied that the foreign divorce is valid.

This may require a declaration from the Circuit Court or, if that fails, a whole new Irish divorce. At least then the situation will be clear.

But if a couple has remarried abroad, a marriage that is legal in the other jurisdiction may not be legally valid in the Republic. This may come to light only on the death of one of the spouses or if the marriage runs into trouble, which could be decades afterwards.

"The most vulnerable person in all this may be the second 'spouse'," says FitzGerald, who warns that not seeking clarity may serve the interests of a wealthy spouse seeking to ring-fence his or her assets from a claim should the marriage fail.

Responsibility for sorting this out should not lie with individuals, according to Shannon, especially as the law is still unclear. "There are five different High Court and Supreme Court judgments on the recognition and enforcement of foreign divorces. People should not have to go through the emotional trauma of a new divorce. It is really a matter for the legislature, which should put in place a coherent system for the recognition of foreign divorces."