The main purpose of the Bill is simple. It is to amend the law relating to domicile by abolishing what is called the domicile of dependency of married women. That is a reference to the discriminatory rule under which the domicile of a married woman is deemed to be the same as that of her husband. The principal provision in the Bill would enable her to have an independent domicile.
Some changes in the rules relating to the domicile of minor children and the recognition of foreign divorces are also proposed in the Bill. These are in the main consequential on the change in the law as to the domicile of a married woman. As I will explain later, once the domicile of dependency of married women is abolished, some changes must be made in the rules as to the domicile of minor children and the rules as to the recognition of foreign divorces and that is why these matters are dealt with in the Bill.
But I want to stress from the outset — in case the fact should be lost sight of during the debate on the Bill — that the Bill is a minimum measure only, confined to dealing with limited aspects of the law of domicile where changes are needed as a result of the main provision in the Bill that is to say, the abolition of the wife's domicile of dependency. In particular, these consequential provisions should not be seen as major proposals for reform of the law of domicile. That is a matter which is being considered separately in the context of recommendations which the Law Reform Commission have made in that general area of the law.
Domicile is a legal concept that arises only in certain cases, all of these being cases which have a foreign element. The concept of domicile is an irrelevance, for most people, even if they are involved in some legal dispute. In the great majority of cases that come before our courts there is no foreign element involved and the court simply applies the ordinary internal Irish law. Accordingly, the proposals in this Bill have no practical implications for the vast majority of people in the State. For example, the question whether a person is guilty of an offence, or is liable to pay damages for negligence, if they are involved in a road accident in Dublin depends solely on Irish law, irrespective of where they come from or whether they are Irish citizens or not. But if, for example, a man who is an Irish citizen and married to an Englishwoman leaves his wife and goes to live in France, gets a divorce from his wife and marries a Frenchwoman, the question of domicile could be important. For instance, if he dies leaving property in Ireland to his second wife, the Irish courts may have to decide whether his French divorce and remarriage should be recognised as valid in Irish law, to say nothing of the liability of his estate to taxation in Ireland. Part of the importance of domicile is that for some purposes, especially those of family law, the Irish court, when it has to decide these questions, has to apply the law of the country in which the person concerned was domiciled at the material time.
Although it is generally true, in countries such as our own which have the common law system, that questions of this kind are decided according to the law of the domicile of the person concerned, in many other countries the test used is that of nationality and not domicile. Another test, habitual residence, is being increasingly used as the connecting factor in specific areas of the law, especially in connection with recent international agreements.
As a general proposition, it is true to say that a person is regarded by the law as being domiciled in the country in which they have their permanent home. Every person acquires a domicile of origin at birth, usually that of their father. That domicile of origin remains unless or until they acquire a different domicile of choice by going to reside in another country with the intention of residing there indefinitely. If they subsequently cease to reside in that country without acquiring a domicile of choice in another country, the law is that their domicile of origin revives. These rules, however, do not apply in relation to married women. A married woman is deemed by law to have the domicile of her husband. For convenience, I have made these statements without qualification, but it should be understood that there may well be a question mark, to put it no stronger, whether such a rule, or at all events some applications of it, could have survived the enactment of the Constitution. That issue has not been tested before the courts.
The concept of domicile has been criticised in a number of respects. The central importance of intention in establishing domicile has been said to make for difficulty and uncertainty. The revival of the domicile of origin can sometimes produce strange results. However, the feature which has been most criticised in recent years is the rule that denies to a married woman the ability to determine by her own actions and intentions where her domicile should be. The present rule in relation to married women means that even if the couple are separated and even if the wife has never lived in her husband's country of domicile — which may be different from the country in which the couple have been married and have lived together before separating — and even if she has no intention of ever living in her husband's country of origin, she will be fixed with a domicile in that country. In these circumsances she can find that important legal questions affecting her will fall to be regulated by the laws of a country which is totally foreign to her.
It is unnecessary to labour the point that the rule is clearly discriminatory. If it may have been appropriate in other times — though I doubt it — few, I think, would argue that it is a rule that should remain part of our law.
The abolition of the domicile of dependency of married women is achieved by section 1 of the Bill. Under that provision a married woman will have an independent domicile which will be ascertained by reference to the same factors as apply to other persons generally.
The enactment of this section will have significance in relation to a number of international conventions. There are a number of these conventions which prohibit discrimination between men and women in respect of various matters, including domicile. Among these agreements are the United Nations Convention on the Elimination of all forms of Discrimination against Women, the United Nations Covenant on Civil and Political Rights and the Seventh Protocol to the European Convention on Human Rights. Our existing law on domicile has been one obstacle in the way of ratification of these agreements. This Bill, when enacted, will remove that obstacle.
The other provisions in the Bill dealing with domicile are, broadly speaking, consequential on the main provisions in section 1 and, as I have mentioned already, are strictly limited to that context. They do not, for example, purport to introduce general reforms in the law of domicile, for example, in the law as to the domicile of minors.
Section 2 provides that the Bill will not have retrospective effect. In other words, any questions arising in future as to what domicile a woman had at any given time before the commencement of the Act will be decided according to the law in force at that given time. As a matter of principle, that is as it should be, since it is impossible to know what injustices might arise from any attempt to change people's domiciles retrospectively. For example, the question whether a will is valid, or whether a marriage or a divorce is recognised in Irish law, may depend on where the person or persons concerned was or were domiciled at the material time; so clearly the Bill should not be so framed as to make invalid something which was valid when it was done or vice versa. In relation to the recognition of foreign divorces, I should perhaps mention at this point — because the matter was raised when the Bill was debated in the Dáil — one particular result of the provision in section 2 that the domicile married women had before the commencement of the Act shall not be affected by the Act. After the commencement of the Act a divorce granted in a foreign country will, as I shall explain, be recognised in Irish law under section 5 if either spouse was domiciled in that country at the time when the divorce proceedings were commenced. This rule will apply only to divorces granted after the commencement of the Act. But even in the case of such a divorce it will be necessary that a spouse should have been domiciled in the country in question at the time of the commencement of the proceedings. Therefore, if, for example, a married woman, living abroad but having her husband's Irish domicile, obtains a foreign divorce in proceedings that she initiated before the commencement of the Act, and the divorce decree is granted after the Act's commencement, it will not qualify for recognition under section 5 because, as a result of the provision in section 2, no independent domicile will be conferred retrospectively on the married woman so as to affect anything she may have done before this Act becomes law.
On the other hand if it is necessary to determine what domicile a woman has at any time after the commencement of the Act, section 3 provides that the matter will be determined as if the legislation had always been in force. This means that if the domicile of a woman who is married at the time the Act comes into force falls to be determined in relation to any date in the future, the new rule contained in the Bill will be applied in considering her history and circumstances without reference to any concept of dependency of domicile. To put it another way, her domicile will be determined as if there never had been a domicile of dependency of married women.
Section 4 is necessary because the present rule in relation to the domicile of minor children of a married couple is that the child takes the domicile of their father. This section provides new rules for the situation where the spouses are living apart. If the child has their home with the mother, and has no home with the father, the child will take the domicile of the mother. If later on the child ceases to have a home with her they will continue to have her domicile unless and until they have a home with their father. If the mother is dead, the domicile of the child will be the domicile the mother had at the time of her death if at that time the child had that domicile by reason of having or having had their home with their mother, as I have just mentioned, and if they have not since had a home with their father.
Where the spouses are living together, the child will continue to have the domicile of their father. Since normally both spouses who are living together will have the same domicile, this is not of special practical significance. It might be argued that, ideally, there should be a new rule making no distinction between the spouses. But there would be practical difficulties. It would be difficult to devise a rule which could operate satisfactorily in all the different circumstances that can be envisaged. If the spouses, although living together, have different domiciles, it would be hard to see what logical basis there would be for deciding whether the child should have the domicile of one parent rather than the other, and the result would be that the child would have to be assigned a domicile separate from either of the parents on whom they are dependent and that would be undesirable. None of these solutions is wholly satisfactory and the Bill, therefore, proceeds on the basis of preserving the status quo in this very limited area, unless and until some better solution is found.
This is a matter which will be considered again in the context of decisions that will be needed on the recommendations of the Law Reform Commission on reform of the law of domicile. The commission recommended that the concept of domicile should be replaced by habitual residence as the general connecting factor for the purpose of private international law. Any general reforms in this area might involve a recasting of the law of domicile as it affects minors. So, for the time being, we are proposing minimum changes in the present law relating to the domicile of minors.
Section 5 of the Bill deals with the recognition of foreign divorces. In the main the section is consequential on the change made in section 1, but I would like to explain why it is necessary to deal with the matter of foreign divorces in this Bill.
At present domicile is a central factor in the law relating to recognition of foreign divorces. The present law, as interpreted by the courts, is that a divorce obtained in a foreign country will be recognised if both spouses were domiciled in that country at the date of institution of the foreign proceedings. The existing rule does not — and has had no need to — take account of the possibility that husband and wife would have different domiciles. Because, under existing law, a married woman has the same domicile as her husband, the rule means that a divorce is recognised in Irish law if it was granted in the country where the husband was domiciled at the date of the institution of the proceedings. That, at all events, is the effect of the rules as commonly stated, but it is right to mention that in the course of a judgment given by him in the Supreme Court Mr. Justice Walsh remarked that it is possible "that some day (the rule) may be challenged on Constitutional grounds in a case in which the wife had never physically left her domicile of origin while her deserting husband may have established a domicile in another jurisdiction". However, at present and pending any such challenge the law has operated on the basis that the spouses have a common domicile in all circumstances, and clearly the Bill must proceed on that basis.
In the absence of specific legislative provisions setting out new rules for recognition of foreign divorces, there would be no way, short of expensive and perhaps long-drawn-out litigation, of establishing how an existing rule linked to the concept of a single domicile for the two parties would be applied or adapted in circumstances where husband and wife had separate domiciles, as they may have once the legislation is in force. On one view a foreign divorce would be recognised here only where both spouses were domiciled in the foreign country. On another view, a lacuna would be left in the law because the present rule, being based on the concept of a common domicile for both parties, could not be regarded as having any application in a situation where that was no longer the case. It is to deal with that problem that the provision in section 5(1) is proposed. Section 5(1) provides that in future a divorce will be recognised if it is granted in the country where either spouse was domiciled. By virtue of section 1(7) the relevant date will be that of institution of the divorce proceedings.
I would like to stress that, once the domicile of dependency of married women is abolished, some change, either increasing or decreasing the grounds of recognition is inevitable in the rules of recognition of foreign divorces. It is simply not possible to preserve the status quo in that new situation.
At first glance it might appear that section 5(1) will greatly increase the incidence of recognition of foreign divorces. Inevitably there will be some increase, but for the following reasons I think the increase will not be great. First, domicile is not something that is casually changed. A person does not become domiciled in another country merely by moving there for a short period. To acquire a new domicile, they will need, on or after going to the other country, to have the intention to make that country his or her permanent home in the sense of intending to reside there for the indefinite future. A court here would have to be satisfied to that effect if the issue arose. Divorces which are obtained on the strength merely of a brief period of residence in another country are not recognised under the existing Irish law and will not be recognised under the Bill when in force. The strength of domicile as a connecting factor means, in practical terms, that a person hitherto domiciled here must virtually have severed their connection with this country before a divorce will be recognised here, and where that happens it seems right that the divorce validly obtained under the laws of the foreign country should be recognised here in accordance with the established principles of private international law which are accepted and acted on in our legal system.
Subsection (4) of section 56 states what may already be part of our existing law. There is a question as to whether the existing rule that a divorce is recognised here if it is granted in the country of domicile of the spouses is complemented by a further rule. This is a rule laid down in 1906 in the English case of Armitage v. A.G. to the effect that a divorce will also be recognised if, while not granted in the country of the common domicile, it would be recognised by the law of that country. The rationale of the rule is that if a change in the status of the spouses has been accepted in the country where they are domiciled it should be accepted in other countries. The reason a doubt may exist as to whether this rule is part of our law is simply because the specific point has never come before our courts for decision. Subsection (4) provides for a similar rule adapted to the new system under which the spouses may have different domiciles. It provides that, if neither spouse is domiciled in the State, a divorce obtained in a foreign country will be recognised if, though neither spouse is domiciled in that country, the divorce is recognised under the law of the country where both the spouses are domiciled or (in a case where they are domiciled in different countries) if it is recognised under the laws of both these countries. The practical effect of this provision is likely to be small.
Subsection (3) of section 5 is a special provision relating to neighbouring jurisdictions and takes account of a particular feature of British law. The jurisdictions mentioned in that subsection are different "countries" for the purposes of private international law, but under British law a divorce obtained in any of them is automatically recognised in all the other jurisdictions mentioned. It seems right to provide, as subsection (3) does, that such a divorce will also be recognised here as long as one of the spouses is domiciled in any one of these jurisdictions. If, for example, the spouses were domiciled in, say, England, and a divorce were obtained in Scotland, that divorce is of course recognised automatically in England and it would be artificial to refuse recognition here. A secondary but valid reason for what is proposed is that, as between Scotland and England, for example, it would be artificial to require our courts to decide whether the spouses were domiciled in the one rather than the other. At this point I should apologise for a slip in paragraph 13 of the explantory memorandum. In the third last line "that subsection" should read "subsection (3)"— the subsection listing the British territories.
There are a number of States which comprise within them different territories with different systems of law in relation to divorce and which do not themselves have automatic recognition of each other's divorces. For example divorces granted in one of the United States are not automatically recognised throughout the other states. In relation to such countries which in matters of divorce have different systems applying in the different territorial units, each such unit will be treated as a separate country as a result of subsection (2). This reflects the ordinary rule of private international law which treats a territorial unit with its own system of law as a separate country. As a result of subsection (2) the different states of the USA will each be regarded as a separate country. A divorce obtained in one state of the United States will be recognised under subsection (1) if one of the spouses is domiciled in that state, and it will be recognised under subsection (4) if, while not granted in that state, the divorce would be recognised in the state or states in which the spouses are domiciled.
Canada and Australia are composite states which have the same law in relation to divorce applying throughout all the constituent territorial units of these states. Because of that, the different territorial units will not be treated as separate countries under subsection (2). Accordingly, a divorce obtained in any part of Canada or Australia by a spouse domiciled in any other part will be recognised.
I should mention two other provisions of section 5. Subsection (5) provides that the new rules for recognition will apply only to divorces granted after the commencement of the Act. It would be clearly undesirable to make the new rules retrospective because the result would be to change a person's matrimonial status retrospectively. I mentioned this point earlier in relation to section 2.
Subsection (6) is a saving provision for the power of the Irish courts to refuse on grounds unrelated to domicile to recognise a foreign divorce. For example, the court may refuse recognition if a spouse is divorced without having been given proper notice of the proceedings.
In regard to the matters covered by the Bill Senators will be aware that the Law Reform Commission have published two relevant reports. In their Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws they recommended, as I mentioned in relation to section 4, that habitual residence should replace domicile as a general connecting factor. In their Report on Recognition of Foreign Divorces and Legal Separations they proposed wide-ranging changes in the rules relating to recognition of foreign divorces based mainly on the concept of habitual residence as a connecting factor.
As I have mentioned already the basic purpose of the present Bill is to get rid of the discriminatory rule under which a married woman is deemed to have the same domicile as her husband. As I have explained also the Bill deals with the rules of recognition of foreign divorces only because some change in those rules is inevitable once the domicile of dependency is abolished. In fact the changes made in this area are in the main minimum changes to enable that desirable change in the law of domicile to be effected.
It is the Government's view that the time is not ripe for any wide-ranging review of the rules of recognition of foreign divorces. The question to what extent we should recognise foreign divorces is one which has an obvious link with internal policy in regard to divorce. The whole policy of the law in this matter will depend on the outcome of the current proposal to amend the Constitution in relation to the matter of divorce. In that context it seems to the Government inappropriate to embark on changes in the rules of recognition beyond those changes that it is necessary to make in order to achieve the main purpose of this Bill. Any decision to change from domicile to habitual residence as the test for recognition of foreign divorces would mean that our rules of recognition would have to be recast to take account of habitual residence, and, since that concept is different in very important respects from domicile, we would have to embark on a complete rethinking of our attitude to recognition. As I have indicated the Government do not consider that the present time is opportune for such an exercise.
For that reason, I would emphasise very strongly that the proposals in the Bill do not mean that the recommendations of the Law Reform Commission have either been forgotten or been rejected. Because of the other circumstances I have mentioned, the Government regard them as matters that should be left aside for the moment. The matters covered in their reports will be taken up later.
Finally, I think I should refer to the fact that there is no provision in the Bill that would enable a court to make ancillary orders relating to such matters as maintenance and matrimonial property, where a foreign divorce is recognised here. The Bill is a minimum measure only, for the reasons already explained. The inclusion of provisions dealing with the financial and property rights and obligations of former spouses whose marriages have been dissolved by a foreign court would represent a substantial extension of the measure that would be outside the scope of the Bill. This is not to say that there may not be a need to give special protection to spouses with close connections with this country who have been divorced abroad, in relation to such matters as maintenance, the family home or barring orders. But the question of making any such provisions, or their nature, can hardly be isolated from similar questions of policy that arise in connection with our own divorce jurisdiction, if introduced.
Accordingly, there are good reasons for awaiting the outcome of the debate on the domestic divorce issue before considering whether to make provision for ancillary matters in relation to former spouses whose foreign divorces are recognised here.
I can give an assurance that the matter will be considered in the context of legislative proposals that would be necessary if the forthcoming referendum is carried, or otherwise in connection with an appropriate family law measure.
I commend this Bill to the House.
