Divorce obtained in UK prior to 1986 was not valid at Irish law

Dunne J: Marriage in Ireland in 1966 - divorce in UK in 1982 - wife returned to Ireland in 2003 - sought declaration that UK divorce not recognised in Ireland - sought divorce in Ireland - Circuit Court declaration that UK divorce was entitled to recognition in Ireland - appeal to High Court - consultative case stated - validity of foreign divorce prior to 1986, where neither party domiciled in country at time of institution of proceedings - residence requirements - Domicile and Recognition of Foreign Divorces Act 1986 - abolition of dependent domicile of married women - recognition of foreign divorces prior to 1986 - Council Regulation 1347/2000 - Council Regulation EC No. 2201/2003 - recognition of judgments in matrimonial matters - Article 41.3 of the Constitution - subsisting valid marriages - whether foreign divorce would be recognised if granted prior to 2 October 1986, if one of the spouses was domiciled in the relevant state at the time of the institution of the divorce proceedings - whether open to court to extend the common law rules in relation to recognition of foreign divorces - whether court had jurisdiction to legislate - whether McG v. W had been correctly decided.

"McGuinness J. in the case of McG. v. W. considered that it was open to the Court to extend the common law rules in relation to recognition of foreign divorces to provide for recognition on the basis of residence. ... With great respect, I have come to the conclusion that McGuinness J. in the case of McG. v. W. was not correct in identifying what was the policy of the Court and its effect on the modification of the common law rules."

Clarke J (concurring): Extent to which significant change to the law could come by an evolution of the common law - development of the common law - constitutional issues.

"In this case the court is, in effect, being asked to declare that the common law, relevant to the time when the divorce which is the subject of these proceedings was decreed, is very different, so far as recognition of foreign divorces in Ireland is concerned, to that which would have been considered to be the case at the time. It is a radical change that is proposed and one which could have a very significant and significantly retrospective effect. It is, in my view, the sort of change which should properly be brought about, if it is considered desirable, by legislation. Limping marriages do create problems. But so also do springing divorces. Legislation is the answer."

O'Donnell J (dissenting): Whether s 5 of the 1986 Act fixed public policy for the purposes of recognising foreign divorces - whether a rule of recognition based on habitual residence rather than domicile would conflict with present public policy - estoppel - whether domicile should be sole basis for recognition of foreign divorce - "real and substantial connection" test - EU law.

"In my view there is as a matter of principle no difference between what was done in J.W. v. J.W., what was done in G. McG. v. D.W.,: both cases involved the rule of recognition to be applied to pre 1986 foreign divorces by reference to present public policy. In each case foreign divorces which were not recognised may now be. Of course I accept that the impact of the decision in G. McG. v. D.W. may be greater than that of J.W. v. J.W., and that people may differ as to the desirability or wisdom of making any change, but that is a matter of prudence rather than principle, and certainly not, in my view, an issue touching on the separation of powers."