Any fundamental changes in the law would be decided by the Irish people, not by Brussels, writes Michael McDowell
Recent newspaper articles may have led people to believe that Ireland's national divorce law is in some way being decided in Brussels. I want to state categorically that the EU has not amended our national divorce law: the provisions of the Irish Constitution and the Family Law (Divorce) Act, 1996, continue to apply to divorces granted in this jurisdiction. The fundamentals of this law cannot be changed without a referendum.
Membership of the EU facilitates free movement of persons within the Union. Accordingly, more and more people now live and work in member states other than their member state of origin. Some of these people marry, and some of their marriages break down. Where marriages with a cross-border element break down, potentially the law of more than one country may apply. This has always been the case, with the result that Irish law has recognised certain foreign divorces, even at a time when divorce in Ireland was not permitted.
The application of different legal systems to the one couple in cases of marriage breakdown has the potential to cause particular uncertainty and hardship for the people concerned. The European Union has formulated rules aimed at minimising such difficulties. These rules have applied in EU member states, including Ireland, since March 2001 in the form of an EU Council regulation. They are commonly known as the Brussels II rules.
These rules do not affect the way in which the courts deal with purely domestic Irish cases. The adoption of rules common to EU member states, both of jurisdiction and for the recognition of divorces, achieves greater certainty in relation to the recognition of divorces, reduces the need for costly litigation and avoids difficulties that could otherwise arise where multiple judgments could result or be required.
Brussels II has brought about some changes in the jurisdiction of our courts and the recognition of foreign divorces. The main criterion for establishing jurisdiction is the ordinary (the legal term used is "habitual") residence of one of the parties. Other criteria include domicile and nationality. Irish law recognised divorces granted on the basis of domicile long before it was possible to obtain a divorce in Ireland.
Domicile is a complex rule which can give rise to uncertainty. It can result in some persons being regarded as divorced in one country but still married in another. The Irish courts have formulated principles for considering domicile. Each case is decided on the basis of its own facts. All circumstances that throw light on the question of where a person intends to remain indefinitely are considered when determining whether a domicile of choice has been acquired.
Importantly, no minimum period is required before which domicile of choice can be established. Depending on the circumstances of a particular case, a new domicile can be obtained very quickly. On the other hand, however, the fact that a person has lived abroad for a substantial number of years may not necessarily be considered sufficient to enable him or her to acquire a new domicile. The domicile rule still applies to the recognition here of divorces granted in countries outside the EU.
Jurisdiction based on habitual residence is, I believe, a more appropriate criterion in cases arising in the European Union where people move frequently from one member state to another, as it is a clearer and more definite concept than domicile.
Since the enactment of the 1996 Act, Irish courts have had jurisdiction to grant divorces on the basis of ordinary (habitual) residence. It is entirely reasonable that we both expect and respect a similar approach from the courts of other member states and attempt to regularise conflicts of jurisdiction.
It is important to bear in mind that the measures which were provided for in the Brussels II rules did not automatically apply to Ireland, which is entitled to opt in to EU rules in relation to certain areas of law, including family law.
Article 29.4.6 of the Constitution requires the Government to obtain the prior approval of both Houses of the Oireachtas before any such opt-in. The formal agreement of both Houses was obtained before our initial opt-in to Brussels II in 1999 and again in 2002 when the Brussels II rules were restated in a new EU regulation. The entitlement which we have to opt in remains for any further developments.
Concern has been expressed that the rules undermine the maintenance rights of dependent spouses and children protected under Irish law which provided an important safeguard in the context of the introduction of divorce in Ireland.
Let me assure readers that the entitlement of the Irish courts to make such orders is in no way affected by the recognition of a foreign divorce under the Brussels II rules. Fears have also been raised that these rules oblige the recognition of fraudulently obtained foreign divorces.
However, safeguards exist in that courts of the EU member states will not grant divorces without both spouses being given the chance to have their say. Furthermore, any divorce decree obtained on the basis of fraud can be overturned by the courts of the member state in which it was obtained, and non-recognition by the courts of other member states is possible in certain circumstances, including where a spouse was not given adequate time to respond to a petition for divorce.
Concern has also been expressed about a Green Paper recently published by the European Commission on the issues of jurisdiction and as to which member state's law should apply in divorce cases with a cross-border element (for example, should Irish courts apply the law of another member state in particular circumstances, and should other member states apply Irish law?).
Like Brussels II, the Green Paper does not relate to our domestic law on divorce. It is a discussion document aimed at initiating consultation and does not contain legislative proposals. Consultation in the light of experience gained since 2001 in this important area of law is to be welcomed.
My Department is co-ordinating the preparation of a response that will be submitted by the Government to the Green Paper. I have already made it clear that the Government's starting point will be that any measures to be taken in this area will not be allowed to undermine our existing laws.
Should the Commission decide to bring forward legislative proposals in respect of the issues covered by the Green Paper, Ireland will retain its right to determine whether it should participate in the negotiation or application of any proposed EU measures and will only do so with the prior approval of both Houses of the Oireachtas.
Michael McDowell TD is Minister for Justice, Equality and Law Reform