The Gazette 1982

GAZETTE

APRIL 1982

Correspondence

February, 1982

The Editor,

Gazette of the Incorporated Law Society,

Blackhall Place,

Dublin 7.

Dear Sir,

Your Editorial "Comment" - "Tinkering with the

Constitution" in the issue of the Gazette of October

1981 is indeed deserving of serious thought and I am

sure many other lawyers and citizens would agree with

these views.

However, as to the comment re. recognition of

foreign decrees of divorce and the suggested alteration

of Article 41.3.2 of the Constitution I think that this

"•oposition would not seem necessary nor advisable

iving regard to recent decisions of the Courts in this

area.

In the Judgment of Kenny J. in the High Court in the

case of

Bank of Ireland

Caff in

[1971] I.R. 123, he

recognized a foreign dccree of divorce where

both par-

ties

had been

domiciled

in a foreign jurisdiction and

held in that particular case that the testator's second

wife whom he had married in Dublin after the decree

nisi was made absolute was his legal spouse for the pur-

poses of the Succession Act 1965.

Having regard to the other provisions of Article 41 in

relation to the guarantee of the State for the support

and protection of the institutions of Marriage and the

Family I think that this interpretation by the High Court

sufficiently lays down a guiding principle which would

appear to be a workable one and to be effectively in ac-

cordance with the principles of private international law

in relation to foreign decrees. The same principle was

also applied later by Kenny J. in

Counihan

(High Court unreported 27 July 1973) and by the

Supreme Court in

Gaffney

[1975] I.R. 133.

Accordingly the fact of domicile of both recognition

rinciple could be applicable within the general provi-

sions of Article 41 in relation to the institutions of

Marriage and the Family. (See "Cases and Materials on

the Irish Constitution" by James O'Reilly and Mary

Redmond at Chapter 18).

In an Article entitled "Foreign divorces obtained on

the basis of residence and the doctrine of estoppel" (9

I.R. Jur. 1974 page 59) Mr. William Duncan speculates

on the possibility as to whether the Courts would ex-

pand the grounds of recognition to residence-based

divorces and on the wife's domicile of dependency and

suggests recognition of divorces granted by a Court of

either party's domicile. But surely would not such a

solution of necessity operate with possible serious and

unjust results both for the party not domiciled in the

particular jurisdiction of the Court Order and of course

also the children in particular of such marriage? I think

that the case of

Gaffney

already referred to

is a clear illustration of this.

This matter is indeed of great importance in relation

to the devolution of property in this country and also to

the disposition of property having regard to the Family

Home Protection Act 1976.

As to the latter it would appear to me accordingly that

a Court Order of this jurisdiction should be called for

rather than a Statutory Declaration exhibiting a foreign

decree of divorce in cases where it is claimed by a Ven-

dor that a property is not a Family Home within the

meaning of the Family Home Protection Act 1976.

Precedent No. 5 of Supplement to Gazette of April 1981

"Guide for Students of Law Society Professional

Course" does not appear to be sufficient or appropriate

therefore in these cases.

The Constitution has indeed served us well as have

also the Courts in interpretation and application of

same. There is at this stage a whole body of

jurisprudence built up around the Constitution which is

of inestimable value.

The Constitution has however been under somewhat

heavy criticism in recent years by writers and lecturers in

the law and this attitude, verging almost on denigration

of the supreme law of the State, is unfortunately

perhaps not a healthy diet for young students of the law,

seeing that it has proved to be a solid basis for the

stability of our institutions and to be of good balance. It

has constantly been rejuvenated and enriched by way of

interpretation by the Courts. Its foundation is the secure

objective principles of the Natural Law.

It could be added finally that in Ireland there should

be no necessity for apology or embarrassment for its

Christian base.

Yours faithfully,

Brendan Fitzgerald, B.A. LL.B.,

Solicitor,

59 Offington Park,

Sutton,

Dublin 13.

Editorial Note:

The case for an alteration in the Constitutional

restriction on the recognition of foreign divorce is based

partly on the difficulty of establishing the domicile of

the parties at the time of the foreign divorce and partly

on the fact that in many cases which concern Irish prac-

titioners the complexities of the doctrine of domicile

have been increased rather than eased by the abolition in

the United Kingdom of the wife's dependent domicile in

the United Kingdom under the provisions of the U.K.

Domicile & Matrimonial Proceedings Act 1973. See

Shatter Family Law in the Republic of Ireland 2nd Edi-

tion Pages 152 - 157.

Note from Authors of the Handbook for

Students

The authors of Handbook for Students agree that it

would be inadvisable to accept a statutory declaration

exhibiting a foreign decree of divorce as sufficient

without making detailed enquiries as to the likelihood of

the foreign decree of divorce being recognised in this

jurisdiction. They doubt whether Court Orders declar-

ing such divorces to be valid in the Republic of Ireland

would be readily obtainable. There is no obvious pro-

cedure available for the obtaining of such Orders. A

Vendor and Purchaser Summons could of course be

taken out but the complexities involved make the sub-

ject an unsuitable one for determination on a Vendor

and Purchaser Act Summons.