A married person living in Ireland can, in certain circumstances, be prevented from seeking a divorce or judicial separation here, the High Court has found. Carol Coulter, Legal Affairs Correspondent, reports.
This arises where the other spouse has any basis for claiming residency elsewhere in the EU, and initiates divorce proceedings there first.
The finding may encourage wealthy people to move abroad in order to institute divorce proceedings in a jurisdiction where a settlement could be more advantageous to them, according to a legal expert.
Mr Justice Kevin O'Higgins was giving a ruling on the implications of an EU regulation known as Brussels II. This is intended to allow for the mutual recognition of divorce between EU member states. It arose out of the Amsterdam treaty and was introduced into Irish law by a resolution of the Oireachtas opting into the discussion process on it in 2000.
The regulation means a divorce case must be heard by the court to which the application is first brought. The other party is then prevented from seeking to have the case heard in their own jurisdiction.
This could give a very different outcome than what is available under Irish family law, Mr Justice O'Higgins said yesterday.
He was giving judgment in a case where a French woman who had moved to Ireland in 1998 was seeking to have the Irish High Court hear her application for judicial separation. Her husband had earlier initiated divorce proceedings in France.
Irish divorce law flows directly from the provisions outlined in the constitutional amendment voted for in the 1995 referendum, and specifically requires that "proper provision" be made for a spouse and children.
The wife sought to have the case heard in Ireland, arguing that the "main seat of the marriage" was in Ireland.
Her husband argued that, under the provisions of Brussels II, the court to which the case was first brought had the right to hear it and decide the issues.
The High Court was asked to settle this question.
Mr Justice O'Higgins declined the wife's application that the case should be heard in Ireland. He said the Brussels II regulation meant that the French court had "seisen", or possession, of the case.
"The Brussels II regulation is part of Irish law. It specifically allows for a choice of jurisdiction in some circumstances."
He added that Brussels II has not altered in any way the circumstances in which Irish courts may grant a divorce.
Asked how Brussels II altered the Irish divorce regime, a legal expert said the new regime allowed for wealthy people to move abroad in order to institute divorce proceedings in an environment more advantageous to them, thereby barring proceedings being taken in Ireland.
"A person who would have preferred to have 'proper provision' under Irish law might be in a worse position in the other country. People have no concept of how quickly a person can invoke the process of getting a divorce in another country," she said.
The expert pointed out that under the Recognition of Foreign Divorce Act prior to Brussels II, both parties in an international marriage could institute proceedings in both countries if they could establish domicile, and they could both be decided.
Normally foreign divorces did not interfere with assets, she said.