As island nations and each other’s closest neighbours, the United Kingdom and the Republic of Ireland have hundreds of thousands of its citizens living in the other’s territory. Indeed, I am one of them. For the purpose of this piece, I will focus on the differences between divorcing in the legal jurisdiction of England (& Wales) to that of the jurisdiction of the Republic of Ireland. It is commonplace for one or both spouses in a marriage in England to be Irish nationals or hold significant familial and financial ties to Ireland. This can raise any number of issues upon the breakdown of a marriage. What happens if one or both want to return to Ireland? What about the children? In this blog, a divorce arising from a marriage, or a dissolution of a civil partnership are interchangeable terms; equally, there is no distinction as to whether the marriage / civil partnership is same or opposite sex.
Isn’t it the same thing?
Not quite. The process for divorce is different across the four legal jurisdictions [(i) England & Wales (ii) Scotland (iii) Northern Ireland (iv) Republic of Ireland] and I will outline other issues in the next few blogs in this series. Here, I will focus on the differences between divorce in England vs the Republic of Ireland.
What is the process for divorcing in England?
A divorce in England can only be started after you have been married for one year and there is only one ground for divorce, you must show the Court that your marriage has “irretrievably broken down”. The Court will accept a statement of irretrievable breakdown by one party to the marriage as conclusive evidence that the marriage has broken down irretrievably. Therefore, divorces take place on a no-fault basis. This is a recent and welcome change to divorce in the jurisdiction of England and Wales.
The divorce application can be made jointly by both parties to the marriage or as a sole application by just one party.
The scope to defend a divorce has now been removed in all cases save where there is a jurisdictional issue and a few other rare exceptions. Therefore, the vast majority of divorces cannot be defended. Costs orders (for one party to pay the other’s costs) will also be very rare.
A divorce should take approximately six months from start to finish. This may take longer if the division of the matrimonial finances remain unresolved which may cause a delay although it is not compulsory to have a financial order alongside the divorce. Similarly, a divorce in England will not address children matters; any dispute in relation to where the children will live will be addressed independently of the divorce proceedings.
What is the process for divorcing in the Republic of Ireland?
A divorce in Ireland can only be started if you have been living separately from your spouse for at least two of the previous three years. Spouses can be living separate and apart under the same roof provided there is no normal marital relationship. This is a recent change where previously spouses had to be living separately for four of the previous five years.
There must also be no reasonable prospect of reconciliation. One spouse must be the applicant; the other party is the respondent. There is no ability to file a joint application.
It is similar to England in that divorces take place on a no-fault basis. You do not need to be married for 12 months before commencing proceedings but must be separated for at least two of the previous three years resulting in a longer waiting period.
A key difference in Ireland is the Court will not grant a divorce without the finances of the marriage also being addressed simultaneously. “Proper provision” must have or will be made for the spouses and any dependent children of the marriage. Whilst children matters are generally not automatically addressed as part of a divorce, it is commonplace for children matters to overlap the divorce proceedings. This has the potential to cause a significant delay particularly if one spouse if eager to re-marry.
Practical issues, such as geography, can also have an impact even in consented straight forward divorces. For example, Dublin Circuit Court sits more regularly than others.
What are the jurisdictional requirements to divorce in England?
There are different jurisdictional requirements in which to divorce in England but all of them fall back on one or both parties being either habitually resident or domiciled in England. My previous blog provides some further information on the meaning of these terms. Some divorces will require an additional period of residence in England of six or twelve months immediately prior to the issue of proceedings
This can allow scenarios where a spouse who is living in Ireland but who is domiciled in England, or more unusually who remains habitually resident in England, to issue divorce proceedings in England. You could also rely upon the fact your spouse is domiciled or habitually resident in England to issue divorce proceedings in England even if you are living in Ireland.
What are the jurisdictional requirements to divorce in the Republic of Ireland?
The jurisdictional basis for divorce in Ireland requires that at least one of the spouses is domiciled in Ireland or else has resided there for at least 12 months prior to the issue of proceedings.
This again differs from England removing any need to be habitually resident. It allows the prospect for a spouse living in England but who remains domiciled in Ireland to commence divorce proceedings in Ireland. You could also issue proceedings in Ireland whilst living in England seeking to rely upon your spouse having lived in Ireland for the previous 12 months or remaining domiciled there.
I can issue in England or the Republic of Ireland – Which is better?
The jurisdictional requirements for both England and Ireland can create a form of “forum shopping” for a divorcing spouse as to which jurisdiction is their preference in which to commence proceedings. Applicants will consider which jurisdiction will provide a divorce more quickly; however, an ancillary financial settlement and the differences as to how each jurisdiction addresses the division of matrimonial finances will often be the most important issue to consider when deciding upon jurisdiction. I will highlight these differences in a forthcoming blog.
Due to Brexit, England is no longer subject to EU law meaning the country ‘first seized” of a divorce (and thus holding jurisdiction over that divorce) no longer applies. However, it remains an important first step and you should not delay if there is a risk that proceedings may be issued in the less favourable jurisdiction. What amounts to the more favourable jurisdiction is a subjective test based upon the circumstances of the marriage and what one wants to be achieved; it will require specialist legal advice from a solicitor before proceeding to issue.
Do England and the Republic of Ireland mutually recognise each other’s divorces?
In short, yes. Ireland is a member state of the EU meaning it is signatory to various treaties concerning the mutual recognition of foreign court orders. The UK’s withdrawal from the EU did provide for some initial uncertainty as to what remained recognised internationally. However, it is now clear divorces obtained in England continue to be recognised in Ireland, and vice versa. Please do not hesitate to contact me if you would like further guidance on any of the issues discussed here.