A safeguard restricting Irish recognition of foreign divorces was added to a European Convention on European divorce and later dropped, The Irish Times has learned.
The declaration was initially appended to the Brussels II Convention on the mutual recognition of EU divorces at Ireland's request in 1998. It disappeared when the convention became a regulation two years later.
The declaration was aimed at preventing people circumventing Irish divorce law as laid down in the Constitution.
The existence of this declaration was not revealed during the brief debate on Ireland's opting into the Brussels II regulation in 2000, where the substance of the regulation was not debated.
Following coverage of the issue by The Irish Times, Government spokesmen insisted that little had changed with the adoption of the Brussels II regulation. No mention was made of the declaration appended to the Brussels 11 Convention in 1998 at Ireland's request, which was then abandoned by the adoption of the regulation. An EU regulation becomes part of Irish law without needing to be incorporated into legislation in the Dáil.
The Brussels II Convention was approved by the EU in May 1998. It provided for the recognition of divorces obtained in other EU jurisdictions where one of the spouses has established a connection with that jurisdiction.
That connection need not be as close as the "domicile" requirement that previously existed under Irish law, which implied permanent residence and an ongoing intention to reside in that jurisdiction.
Irish negotiators were concerned that the convention could be used to get a hastier divorce than that provided for under the Constitution, which requires a minimum of four years' separation, without the protections for the dependent spouse and children provided for in Irish law.
Therefore they sought an amendment to permit refusal of recognition if the link between the person seeking the divorce and the jurisdiction was not genuine.
This would demand Irish courts re-examining the decision of the other EU courts, and was held to undermine the purpose of the convention, so it was rejected by the other states. As a compromise, a declaration was annexed to the convention to meet Ireland's concerns.
This stated: "Notwithstanding the provisions of this convention, Ireland may maintain the jurisdiction which it has to refuse to recognise a divorce obtained in another Member State where that divorce has been obtained as a result of the party, or parties, deliberately misleading a court of the State in question in relation to its jurisdictional requirements, such that recognition of the divorce would not be compatible with the Constitution of Ireland."
Explaining this, the July 1998 issue of the Official Journal of the European Communities stated: "The delegations did, however, take into consideration the fact that the Irish Constitution contains specific provisions concerning divorce and that divorce has been introduced in Ireland very recently following a referendum. For that reason the declaration annexed to the convention was accepted for a renewable transitional period of five years."
In March 2000, Ireland agreed to opt in to the process whereby the convention became a regulation, and therefore an EU law that automatically became part of Irish law. The process of transforming the convention into a regulation made the declaration redundant. The decision to opt into the Brussels II regulation was taken by the Dáil without a debate on its contents, or any discussion of the declaration, whose existence was not revealed.
Since it came into operation, a number of problems have emerged. These were outlined in a Green Paper published earlier this year by the European Commission, which gave all member states until September to make observations on possible solutions.