THE SUPREME COURT
[Appeal No. 8/2010]
Denham C.J.
Hardiman J.
O’Donnell J.
Clarke J.
Dunne J.
IN THE MATTER OF SECTION 38 OF THE COURTS OF JUSTICE ACT, 1936
AND
IN THE MATTER OF A CASE STATED TO THE SUPREME COURT
BETWEEN
M. H.
APPLICANT/APPELLANT
AND
G. H.
RESPONDENT
AND
THE ATTORNEY GENERAL
NOTICE PARTY
Judgment of Ms. Justice Dunne delivered on the 3rd day of February, 2015
Introduction
On the 24th September, 1966 the applicant/appellant (“the appellant”) was married to the respondent in Ennis, County Clare. 
There
are six children of the marriage, the youngest of whom was born in 1974. 
The parties resided at the family home in County Clare on a
farm of some forty acres. 
Issues arose in the marriage between the appellant and the respondent and in July 1978 the appellant left
the respondent and the family home and went to reside in England. 
It was alleged by the appellant that she left because the
respondent had been violent towards her. 
In October 1979 she returned to the family home and there was an attempt at
reconciliation between the parties. 
The appellant alleges that she was subjected again to violence by the respondent; she left the
family home taking the youngest child with her and she went to reside in London. 
The respondent denies the allegations of violence
made against him.
On the 4th February, 1981 and while the appellant was resident in England she applied to Willesden County Court for a decree of
divorce. 
A decree of divorce nisi was made on the 22nd January, 1982 and the decree of divorce nisi was made final and absolute on
the 14th July, 1982. 
It appears from the decree absolute made on the 14th July, 1982 that no financial relief or provision was granted
by the court in making that order.
The appellant returned to Ireland in 2003 and worked as a carer. 
She subsequently moved back to Clare and on the 28th November,
2005 a family law civil bill was issued on her behalf seeking 
inter alia
 a declaration pursuant to s. 29(1)(c) of the Family Law Act 1995
that the decree of divorce granted by Willesden County Court in 1982 in respect of the marriage of the appellant and the respondent
is not entitled to recognition in the State. 
She also sought a declaration that the marriage between the appellant and the respondent
subsisted at the date of the hearing of the proceedings. 
In addition she sought a decree of divorce in respect of the marriage of the
appellant and the respondent pursuant to the provisions of s. 5(1) of the Family Law (Divorce) Act 1996 together with ancillary relief.
A defence and counterclaim was duly filed and the proceedings came on for hearing before the Circuit Court on the 12th October,
2007. 
In the course of the hearing before the Circuit Court reference was made to a number of conflicting decisions of the High Court
in the cases of 
McG. v. W (No. 1)
 [2000] 1 I.R. 96, 
M.E.C. v. J.A.C.
 [2001] 2 I.R. 399 and 
D.T. v. F.L.
 [2002] 2 I.L.R.M. 152. 
The
learned Circuit Court judge followed the decision in 
McG. v. W
 and held that the English decree of divorce was entitled to recognition
in this jurisdiction on the basis that the appellant had been resident in England for a year at the time of the institution of the English
divorce proceedings. 
Accordingly the Circuit Court made a declaration that the decree of divorce made at Willesden County Court was
a valid divorce in this jurisdiction and dismissed the appellant’s claim for a divorce.
The appellant appealed that decision to the High Court and the Attorney General was given notice of the proceedings pursuant to s.
29(4) of the Family Law Act 1995 by order of the High Court made on the 30th November, 2008.
The appeal came on for hearing before the High Court (Edwards J.) on the 12th November, 2009. 
The appellant gave evidence and
was cross-examined in relation to her residence and domicile at the time of the institution of the proceedings for divorce in Willesden
County Court. 
The learned High Court judge made the following findings in the course of the hearing, namely, that the appellant was
not domiciled in England either at the time of the institution of the proceedings for divorce or at the time of the grant of the decree
absolute. 
He also found as a fact that she was resident in England for one year prior to the date of the proceedings.
Given those findings of fact, it was accepted by the learned High Court judge that the English decree of divorce would not be entitled
to recognition in this jurisdiction unless the State recognised the validity of a foreign divorce lawfully granted in a country where
neither party to the marriage in question was domiciled at the date of the institution of the divorce proceedings but where one party
was resident at that date. 
In view of the fact that there are conflicting High Court authorities on the applicable law, the learned High
Court judge considered that the issue relating to the recognition of foreign divorces was properly raised in the proceedings and that
an important question of law arose relating to that question. 
In all the circumstances he considered that it was appropriate that the
opinion of the Supreme Court be sought before determining the appeal and accordingly an order was made referring this matter to the
Supreme Court by way of consultative case stated seeking the opinion of the Supreme Court on the following questions:
“(1) Does the law of the State recognise the validity of a foreign divorce lawfully granted prior to the 2nd October,
1986 in a country where neither party to the marriage in question was domiciled at the date of the institution of the
divorce proceedings but where one party was resident on that date?
(2) If the answer to the first question is “Yes”, is it sufficient that the party resident in the country granting the
divorce is resident for the period required by the law of that country to ground its divorce jurisdiction?
(3) If the answer to second question is “No”, for what period must a party to the marriage in question have been
resident in the country granting the divorce in order to entitle such a foreign divorce to recognition in the State?”
The relevant statute law
The Domicile and Recognition of Foreign Divorces Act 1986 abolished the dependent domicile of a married woman. 
It is provided in s. 1
of the Act as follows:
“1.— (1) From the commencement of this Act the domicile of a married woman shall be an independent domicile and
shall be determined by reference to the same factors as in the case of any other person capable of having an
independent domicile and, accordingly, the rule of law whereby upon marriage a woman acquires the domicile of her
husband and is during the subsistence of the marriage incapable of having any other domicile is hereby abolished.
(2) This section applies to the parties to every marriage, irrespective of where and under what law the marriage
takes place and irrespective of the domicile of the parties at the time of the marriage.”
Having provided for the abolition of a wife’s dependent domicile, s. 5 of the Act then went on to make provision in respect of the
recognition of foreign divorces in the following terms:
“5.— (1) For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled,
there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is
domiciled.
(2) In relation to a country which has in matters of divorce two or more systems applying in different territorial
units, this section shall, without prejudice to subsection (3) of this section, have effect as if each territorial unit
were a separate country.
(3) A divorce granted in any of the following jurisdictions -
(a) England and Wales,
(b) Scotland,
(c) Northern Ireland,
(d) the Isle of Man,
(e) the Channel Islands,
shall be recognised if either spouse is domiciled in any of those jurisdictions.
(4) In a case where neither spouse is domiciled in the State, a divorce shall be recognised if, although not granted
in the country where either spouse is domiciled, it is recognised in the country or countries where the spouses are
domiciled.
(5) This section shall apply to a divorce granted after the commencement of this Act.
(6) Nothing in this section shall affect a ground on which a court may refuse to recognise a divorce, other than
such a ground related to the question whether a spouse is domiciled in a particular country, or whether the divorce
is recognised in a country where a spouse is domiciled.
(7) In this section –
‘divorce’ means divorce 
a vinculo matrimonii
;
‘domiciled’ means domiciled at the date of the institution of the proceedings for divorce.”
As can be seen from the sections set out above, the provisions of the Act apply to a divorce granted after the commencement of the
Act and not to a divorce which was granted prior to the commencement of the Act.
Recognition of foreign divorces prior to the 1986 Act
The position in Ireland prior to the coming into force of Bunreacht na hÉireann was understood to be that a foreign divorce would be
recognised by the courts of this country if both spouses were domiciled within the jurisdiction of the court granting the decree at the
date of institution of the divorce proceedings. 
As the domicile of a wife was understood to be dependent upon that of her husband at
that time, in practical terms, this meant that a divorce was recognised if granted by the courts of the country in which the husband
was then domiciled. 
There was some uncertainty as to whether this position would continue following the introduction of Bunreacht
na hÉireann which, of course, then contained a ban on divorce. 
This issue was considered in a number of cases notably, 
Mayo-Perrott
v. Mayo-Perrott
 [1958] I.R. 336, 
Bank of Ireland v. Caffin
 [1971] I.R. 123, and 
Gaffney v. Gaffney
 [1975] I.R. 133. 
A passage from
the judgment of Walsh J. in the case of 
Gaffney v. Gaffney
 at page 150 illustrates the position:
“Judicial dissolution of marriage was not available in any part of Ireland until 1939. In that year the courts of Northern
Ireland were given power by statute to dissolve marriages. In this State no such judicial process is available.
Notwithstanding the absence of this particular jurisdiction in Irish courts, it was a principle of the system of private
international law recognised by the Irish courts that they would recognise decrees of dissolution of marriage granted by
the courts of another country where the parties were domiciled at the time. Domicile was recognised and accepted as the
foundation of the jurisdiction to dissolve marriage. In 
In re Lyons
 [1937] 72 I.L.T.R. 87 the Court of Appeal in Northern
Ireland refused to recognise a decree of divorce granted in the United States because, at the time of the commencement
of those proceedings which led to the dissolution of marriage, the parties were not domiciled within the jurisdiction of the
court which pronounced the decree. In the course of his judgment in 
Mayo-Perrott v. Mayo-Perrott
 [1958] I.R. 336,
Kingsmill Moore J. stated the Irish law to have been that the recognition of foreign divorces in Irish courts depended upon
establishing that the domicile of the parties was within the jurisdiction of the court pronouncing the decree. Recognition
and application of this principle of private international law was part of the common law in Ireland and, like Kingsmill Moore
J. in the 
Mayo-Perrott
 case and Mr. Justice Kenny in this case, I am satisfied that it is still part of our law. It follows,
therefore, that the Courts here do not recognise decrees of dissolution of marriage pronounced by foreign courts unless
the parties were domiciled within the jurisdiction of the foreign court in question. Insofar as the Courts of this country are
concerned, the marriage remains as valid and as subsisting in this country as it would have been but for the intervention
of the purported decree of dissolution.”
The matter was further considered by the Supreme Court in the case of 
T. v. T.
 [1983] I.R. 29. 
That case was originally a case
stated by the District Court to the High Court and was ultimately appealed to the Supreme Court. 
Henchy J. at page 33 noted:
“The net point is still the same. At the time of the divorce, was the husband’s domicile Irish or British? If it was British,
the divorce qualifies for recognition in our Courts; if it was Irish, the divorce was given without jurisdiction and cannot be
acted on here: see the decision of this Court in 
Gaffney v. Gaffney
.”
Thus it can be seen that by the early 1980s, the position in relation to the recognition of foreign divorces was understood to be firmly
and solely based on the domicile of the parties concerned.
An era of change
The decision of the Supreme Court in the case of 
K.D. (otherwise C) v. M.C.
 [1985] I.R. 697 is of some interest. 
In that case it was
suggested that the common law approach to the recognition of a foreign divorce, which was by that stage well established as being
dependent upon the domicile of the parties, should be viewed as being not the only appropriate test to be applied and that an
alternative test should be considered, namely whether there was a real and substantial connection in existence between the parties
and the law of the country of the court granting the divorce. 
It was suggested that that test first identified in the decision of 
Indyka
v. Indyka
 [1969] 1 A.C. 33 should be applied in this jurisdiction. 
The Supreme Court rejected the suggestion that the Irish courts
should adopt that test stating, 
inter alia
, that since the evidence before the Court did not show a real and substantial connection
between the parties and England where the divorce at issue had been granted that the Court would in those circumstances be
deciding a point of law upon theoretical facts, something which the Court declined to do. 
An observation made by Finlay C.J. is of
relevance. 
He stated at page 702 of the judgment as follows:
“It may well be, as was urged upon the Court, that anomalies exist in the law of domicile when applied to the recognition
of foreign divorces. It may well be that this area of the law, the reform of which has been recommended by the Law
Reform Commission, should receive statutory attention, but that is not a reason in itself for considering a test other than
the well established test of domicile which was the only test put forward in the High Court and the only test which arises
on the facts of this case.”
Finlay C.J. had made reference in the above passage to a recommendation by the Law Reform Commission in relation to the
recognition of foreign divorces. 
The Law Reform Commission had published a report in 1985 on, 
inter alia
, the recognition of foreign
divorces. 
Its recommendations included the following:
“Where both spouses are habitually resident in the State at the date of the institution of the divorce proceedings, a
foreign divorce obtained by them should not be recognised at all in this country.”
To a large extent, the focus of the Law Reform Commission was on the concept of habitual residence. 
Even in the case of the
habitual residence of one of the spouses in a country where proceedings for divorce were instituted, its recommendation for
recognition was dependent upon the other spouse submitting to that jurisdiction. 
I have previously set out a number of sections from
the Domicile and Recognition of Foreign Divorces Act 1986 and as can be seen, the Oireachtas in enacting that legislation did not
adopt the recommendations of the Law Reform Commission but rather chose to maintain the concept of recognition based on domicile.
The abolition of dependent domicile of wives
Prior to the enactment of the 1986 Act, there was some doubt cast by Walsh J. in the course of his judgment in the case of 
Gaffney
on the concept of the dependent domicile of a wife. 
He noted at page 152 of the judgment:
“So far as the plaintiff was concerned, it was not suggested that her domicile during the subsistence of her marriage was
different from that of her husband. The law has been that during the subsistence of a marriage the wife's domicile remains
the same as, and changes with, that of her husband. For the purpose of this case it is proper to adopt this view,
although it is possible that some day it may be challenged on constitutional grounds in a case where the wife has never
physically left her domicile of origin while her deserting husband may have established a domicile in another jurisdiction.”
The tentative view expressed by Walsh J. in the case of 
Gaffney v. Gaffney
 found further expression in the Law Reform Commission’s
report on 
Domicile and Habitual Residence as
 
Connecting Factors in the Conflict of Laws
 which was published in 1983. 
It
recommended that the domicile of dependency of married women should be abolished and, of course, this was subsequently brought
about by the Domicile and Recognition of Foreign Divorces Act 1986 which, in addition, made express provision for the rule that a
divorce shall be recognised if granted in a country where either spouse is domiciled as previously mentioned (see s. 5(1) of the 1986
Act).
Developments following the 1986 Act
The question of the dependent domicile of wives came to be considered again notwithstanding its abolition in the 1986 Act. 
Barr J.
considered the matter in two decisions of the High Court (
C.M. v. T. M.
 [1987] I.R. 152 and 
C. M. v. T. M. (No. 2)
 [1992] 2 I.R. 52).
In the latter case, Barr J. at page 63 of his judgment stated:
“I would have no hesitation whatever in holding that the old rule was a relic of matrimonial female bondage which was
swept away by principles of equality before the law and equal rights in marriage as between men and women which are
enshrined in the Constitution – see in particular Article 40, ss. 1 and 3 and Article 41. It appears that the only possible
argument against such a conclusion is that it might create some uncertainty for spouses and others who may have been
affected by the rule in times past. It does not seem to me that that argument could possibly save an alleged rule of law
which is patently unconstitutional and can be unjust and unreal in its application. ...”
The views of Barr J. to the effect that the common law rule in respect of the dependent domicile of wives did not survive the
enactment of the Constitution came to be considered in the case of 
W. v. W.
 [1993] 2 I.R. 476 by the Supreme Court. 
That was a
case which was originally before the Circuit Court, having been the subject of an application by the plaintiff wife for a decree of
judicial separation and ancillary orders. 
Part of the defence was a claim by the defendant husband that the marriage between him and
the plaintiff was not valid because the wife had been married previously and had obtained a divorce in England from her first husband.
He contended that at the time of the divorce, the plaintiff wife was domiciled in Ireland and that as such the divorce was not entitled
to be recognised in this jurisdiction. 
The Circuit Court granted a decree of judicial separation and the defendant husband appealed to
the High Court. 
In the High Court it was found on the evidence that if the plaintiff had an independent domicile, she had acquired a
domicile of choice in England at the time of her first marriage. 
However, by the time she obtained the divorce in England she had
formed the intention of marrying the defendant in these proceedings and of remaining in Ireland. 
On that basis, assuming there was an
independent domicile she had resumed her domicile of origin in Ireland and consequently the divorce could not be recognised with the
consequent effects on her marriage in this jurisdiction. 
Both parties asked the High Court to state a case for the opinion of the
Supreme Court and one of those questions was as follows:
“Can the decision of Barr J. in 
C.M. v. T.M.
 [1991] I.L.R.M. 268, that the rule of the dependent domicile of married women
is unconstitutional be applied retrospectively so as to render void the marriage of the plaintiff to the defendant on the 7th
May, 1973?”
The Supreme Court held, 
inter alia
, that the common law rule of dependent domicile of a married woman ceased to be part of Irish law
by virtue of Article 50 of the Constitution, being inconsistent with Article 40, s. 1 and did not survive the Constitution’s enactment. 
It
was further held that the common law rule to be applied to the period prior to the 2nd October, 1986, is that a divorce will be
recognised if granted by the court of a country in which either of the parties to the marriage was domiciled at the time of the
proceedings for divorce. 
The majority judgment in that case was delivered by Blayney J. and it would be useful to quote a passage
from his judgment in which he made two important observations at p. 505 of the judgment:
“But a new common law rule limiting the recognition of divorces to those granted in a country in which the husband was
domiciled would not be consistent with the Constitution. As in the case of the dependent domicile rule, it would offend
against Article 40, section 1. In order to avoid this, the rule would have to be extended further to include divorces
granted in the country in which the wife was domiciled. I see no alternative to this. The old rule has to go because it is
no longer appropriate to a situation where husband and wife have separate domiciles. Being a judge-made rule, it is for
this Court to decide the form of the rule by which it should be replaced. I agree with Egan J. that the rule should be that
our courts will recognise a divorce granted in a country in which either of the parties to the marriage was domiciled at the
time of the proceedings.
In my opinion, such recognition would be consistent with what the present policy of this Court should be. The Court may
not leave out of account the provisions of the Domicile and Recognition of Foreign Divorces Act 1986, which, having
abolished the rule as to the dependent domicile of a married woman, provided as follows in s. 5, sub-section 1: –
‘For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is
hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is
domiciled.’
While this provision applies only to divorces granted after the statute came into force on the 2nd October, 1986, it seems
to me that it would be wholly consistent with the statute that this Court, as a matter of public policy, should
independently modify the judge-made rule in order to do justice to the plaintiff. If the legislature considered it right that
the statutory abolition of the dependent domicile rule should require the enactment of s. 5, sub-s. 1, it seems eminently
reasonable that this Court, having decided that the dependent domicile rule did not survive the enactment of the
Constitution, should also modify on similar lines the rule in regard to the recognition of foreign divorces in order to enable
the plaintiff's divorce to be recognised.”
The two central points that emerge from that decision are of some importance in the overall context of this case, namely that a
common law rule being judge-made law is not immutable and that insofar as it may be modified it should be modified having regard to
public policy as may be discerned from relevant statute law or from constitutional amendments as may be appropriate.
Counsel on behalf of the appellant in their written submissions referred to Hogan and Whyte in 
J.M. Kelly: The Irish Constitution 
(4th
Ed.) at paragraph 7.6.125 in which the learned authors observed in relation to the judgment of Blayney J. as follows:
“While the majority decision may provoke unease among those who dislike the notion of judicial legislation – given the very
nebulous distinction between such activity eschewed by the Supreme Court in cases like L. v. L. and the more acceptable
additional refinement of common law rules such as in the instant case – it does have the merit of introducing a uniform
rule for the recognition of foreign divorces, so that one’s marital status is not affected one way or the other by the mere
happenstance of the date of the foreign divorce.”
It may have been thought that the issue of recognition of foreign divorces had been resolved by the enactment of the Domicile and
Recognition of Foreign Divorces Act in 1986 and by the subsequent decision in the case of 
W. v. W
. 
However, matters did not end
there. “The next development was the Fifteenth Amendment to the Constitution Act 1995 which was approved by a Referendum held
on the 24th November, 1995, which removed the ban on divorce.
The next development was the amendment of the Constitution on the 24th November, 1995 which removed the ban on divorce.
Subsequently the Family Law (Divorce) Act 1996 came into force on the 27th February, 1997. 
It is not necessary to set out the
terms of the legislation or indeed the terms of the constitutional amendment but it is relevant to note the provisions of s. 39(1) of the
1996 Act which provides as follows:
“The court may grant a decree of divorce if, but only if, one of the following requirements is satisfied –
(a) either of the spouses concerned was domiciled in the State on the date of the institution of the proceedings
concerned,
(b) either of the spouses was ordinarily resident in the State throughout the period of one year ending on that
date.”
Accordingly it can be seen that the courts in this jurisdiction can now grant a divorce on the basis of either the domicile of either of
the spouses or the residence of either of the spouses in the State for a period of one year at the date of the institution of the
proceedings. 
Thus, the position then was, that having regard to the terms of the 1986 Act and bearing in mind the decision of the
Supreme Court in the case of 
W. v. W
., a foreign divorce would be recognised if granted in a country where either of the spouses was
domiciled at the date of institution of proceedings whereas in this jurisdiction, a divorce could be granted on the basis of either
residence or domicile.
Subsequent decisions on the recognition of foreign divorces
The issue of the recognition of foreign divorces was again raised in the case of 
McG. v. W.
 
(No. 1)
 [2000] 1 I.R. 96 and in the
subsequent decision in 
M.E.C. v. J.A.C.
 [2001] 2 I.R. 399. 
The decision in 
McG v. W
. was then considered in the subsequent decision
in the case of 
D.T. v. F.L.
 [2002] 2 I.L.R.M. 152. 
There is a conflict between the decisions in 
McG v. W.
 and 
M.E.C. v. J.A.C.
 and it is
the resolution of that conflict which is at the heart of the case stated herein. 
I now propose to consider those decisions in some
detail.
The circumstances in 
McG v. W
. are necessary to describe. 
In 1998, the petitioner sought a decree of nullity of his marriage to the
respondent on the basis that he lacked capacity to marry at the time of his marriage because of a prior subsisting valid marriage to
the notice party. 
The petitioner had married the notice party in 1967 and they separated in 1978. 
In 1983 the notice party entered
into a new relationship in England with Mr. R. and she co-habited with him in England. 
In 1984, the petitioner issued divorce
proceedings in England relying on the notice party’s residence there for one year prior to the date of issue of the divorce proceedings.
It was never suggested that the notice party had been domiciled in England at that time. 
A decree absolute was made in February
1985 on foot of which the petitioner married the respondent on the 25th November, 1985 in London. 
The respondent was a British
citizen, domiciled in England. 
Subsequently, the notice party also married Mr. R.
At the hearing of the action the parties consented to the matter being dealt with as though it was an application pursuant to s. 29 of
the Family Law Act 1995 which enables the Court to grant a declaration as to the recognition within the State of a foreign divorce.
One of the issues in the background in that case was the fact that when the proceedings were before the Master of the High Court
for the purpose of fixing the time and mode of trial and determining the questions to be tried in the proceedings, the Master refused
to make the order and took the view that the English divorce was of no effect and that the parties had committed bigamy. 
He
directed that papers be sent to the Director of Public Prosecutions and as a result, An Garda Síochána interviewed a number of people
including the notice party.
McGuinness J. was satisfied that there was no doubt as to the validity of the divorce in English law and equally that the marriages of
the petitioner and respondent and of the notice party and Mr. R. were valid marriages in English law. 
The question was whether the
marriage between the petitioner and the respondent would be recognised in this jurisdiction. 
As the 1986 Act was prospective in its
application, McGuinness J. determined that the question at issue in the proceedings had to be determined in accordance with common
law principles.
McGuinness J. in the course of her judgment considered the developments in the law relating to divorce in this country, by the
passing of the Fifteenth Amendment to the Constitution which permitted divorce and by the enactment of the Family Law (Divorce)
Act 1996. 
She also considered case law in relation to the recognition of foreign divorces and the changes brought about by the 1986
Act and she laid considerable emphasis on the decision of the Supreme Court in 
W. v. W
. referred to above. 
She cited part of the
passage from the judgment of Blayney J. at page 505 of the report which I have set out above and went on to say at page 106 of
her judgment:
“It seems to me that in considering in the instant case ‘what the present policy of the court should be’ I ‘may not leave
out of account’ the provisions of the Act of 1996, which is the current major statutory provision in regard to divorce. It
does not seem to me that it would in reality be inconsistent with the Act of 1986 that this court ‘as a matter of public
policy should independently modify the judge-made rule in order to do justice’ to the three parties in this case.”
McGuinness J. also referred to the decision in the case of 
K.D. (C) v. M.C.
 [1985] I.R. 697 in which the Supreme Court refused to
recognise an English divorce on the test of “real and substantial connection” as described in 
Indyka v. Indyka
 [1969] 1 A.C. 33. 
In
that case the High Court found that the respondent husband was domiciled in Ireland at the time of the divorce (which was pre-1986)
and that the divorce could not be recognised. 
On appeal the Supreme Court concluded that as the evidence before the Court did not
show a real and substantial connection between the parties in England the Court would be deciding a point of law upon theoretical
facts and accordingly the appeal was not allowed. 
McGuinness J. commented on that judgment at page 107 as follows:
“It will be seen from this that the Supreme Court rejected the extension of the recognition rule on narrow grounds and on
the particular facts of the case. The case was also decided in a pre-1986 context where only the old rule of common
domicile applied; it was also, of course, prior to either 
W. v. W.
 [1993] 2 I.R. 476 or the recent constitutional and
statutory changes. In the present changed circumstances I do not think that this case can be taken as authority that no
possible extension of the recognition rules beyond the factor of domicile can be permitted.”
McGuiness J. went on to conclude as follows:
“In the light of the legal considerations set out above I consider that the decree of divorce granted by the English court
to the petitioner and the notice party on the 12th February, 1985, is entitled to recognition under Irish law. It follows
that both the marriage between the petitioner and the respondent and the marriage between the notice party and Mr. R.
are valid marriages.”
There is an interesting footnote to the decision in that case in that an application was made by the Attorney General to be joined as
a notice party in those proceedings for the purpose of appealing the decision of the High Court to the Supreme Court. 
The Supreme
Court having considered the application concluded that as no appeal had been taken after the judgment and order in 
McG. v. W.
 was
given, there were no proceedings in which to join the Attorney General. 
(See [2000] 4 I.R. 1.)
The decision in 
McG. v. W.
 was not followed in the subsequent case of 
M.E.C. v. J.A.C.
 
The background to that case is described in
the judgment of Kinlen J. 
There were in fact two sets of proceedings before the Court. 
M.E.C married the respondent J.A.C on 18th
May, 1968 in County Sligo. 
In 1968 the appellant and the respondent moved to England. 
The parties separated in October 1979 and
the appellant returned to Ireland. 
A divorce was obtained by the respondent in England on the 2nd May, 1980. 
The respondent then
married J.O.C., the notice party on the 29th September, 1989 in London. 
Proceedings were brought against the respondent by the
notice party in 1998 seeking a decree of judicial separation and this was granted to the notice party on the 4th May, 1999.
Subsequent to the decree of judicial separation, the appellant, M.E.C., issued a special summons seeking, 
inter alia
, a declaration that
the divorce granted in London in 1980 was not entitled to recognition in Irish law on the basis that neither party was domiciled there
at the time. 
The Attorney General was joined to the proceedings and argued against the proposition that the Irish courts should
extend recognition to a decree of divorce granted by the courts of a country in which one or both of the spouses had been resident,
but not domiciled, prior to and at the time of the institution of the divorce proceedings. 
A preliminary issue was tried in the
proceedings as to whether or not the parties were in fact domiciled in England and the Court concluded that the evidence did not
establish that at the time of the divorce either of the two parties to those proceedings were domiciled in England. 
It then became
necessary to consider the question of whether the divorce obtained there was entitled to recognition on any basis other than
domicile.
In the course of his judgment, Kinlen J. examined the role of the courts in modifying common law rules.
He noted the approach that was taken by the Supreme Court in 
W. v. W.
 referred to above and commented as follows:
“The Act of 1986 introduced further changes and in particular gave statutory recognition to the rule in 
Armitage v.
Attorney General
 [1966] P. 135. In 
W. v. W.
 [1993] 2 I.R. 476 the Supreme Court found that the concept of dependant
domicile had not survived the coming into force of the Constitution. The court further found that this judicial ‘discovery’
necessitated a new rule as to the recognition of foreign divorces granted prior to the 2nd October, 1986. The rule
adopted by the Supreme Court was that a divorce would be recognised if granted by the courts of the country where
either spouse was domiciled at the time of the proceedings for divorce.”
Kinlen J. set out 
in extenso
 the submissions of the Attorney General to the effect that the decision in the case of 
McG. v. W.
 was
wrong. 
In essence it was submitted on behalf of the Attorney General in that case that it was undesirable that the rules regarding
recognition of foreign divorces should differ depending on the “rather arbitrary criterion of the date on which the Act of 1986 came
into force”. 
(p. 409). 
It was also contended on behalf of the Attorney General in that case that the matter was one best regulated by
the Oireachtas and that the conditions which justified radical development of the law in
W. v. W.
 did not exist in 
McG. v. W.
 or indeed in the case before Kinlen J. 
The Attorney General accepted that the rules regarding
recognition of foreign divorces were judge made but noted that the Oireachtas had intervened by virtue of the provisions of s. 5 of
the Domicile and Recognition of Foreign Divorces Act 1986 and by s. 30(3) of the Family Law Act 1995. 
Kinlen J. went on to observe
at p. 410:
“The application of the current domicile based recognition rules is also capable of producing hardship. 
Indeed the concept
of domicile is itself capable of creating problems. These problems are not capable of resolution by a simple modification of
the recognition rules – only a manifold modification of the recognition rules which caters for all the variations is
appropriate. Judicial intervention is not. The courts have traditionally refrained from intervening in these circles.”
Kinlen J. concluded in that case as follows:
“Each case must be determined on its own facts. The facts in this case differ slightly from 
G. McG. v. D.W.
 [2000] 1 I.R.
96. Moreover, the Attorney General did not appear in that case. Matters were argued in this court by him and indeed by
the other parties which were not ventilated in 
G. McG. v. D.W.
The mere fact that the Oireachtas is slow to deal with many problems in the matrimonial field does not in itself give
support to the court's jurisdiction to legislate. As far back as the 1950’s Ó Briain J., President of the Circuit Court (in
Attorney General v. Ballins
 (1964) Ir. Jur. 14) expressed the hope that the legislature would look at the whole question of
bigamy. Nothing has yet been done to remedy the defects identified.
If the grounds of recognition are retrospectively extended to include the residence of either party then that will have
serious implications for the way in which the State and many of its citizens have ordered their affairs. In an affidavit
sworn by Ms. O'Mahony of the Chief State Solicitor's office, she avers that the 1991 census showed that the marital
status of 6,103 residents was regulated by foreign divorces; by 1996 that number had increased to nearly 10,000. The
Registrar General and the Department of Foreign Affairs in the granting of 
nulla osta
 certificates work on domicile not by
residence.
The court is aware that there may well be a very substantial change in the whole law of recognition of foreign divorces in
the very near future. 
There will almost certainly be referenda on ‘Brussels II’ and the ‘Nice Agreements’. However, this
court cannot assume the result of referenda or prospective legislation.
Therefore, this court, being satisfied that neither party to the divorce granted by an English divorce court in respect of
the marriage between the applicant M.E.C. and the respondent J.A.C. was domiciled in England at the time, finds that this
divorce is not entitled to recognition within the State at this time.”
It has been submitted on behalf of the appellant in this Court and indeed on behalf of the Attorney General that more weight should
be given to the judgment of Kinlen J. than the judgment of McGuinness J. given that the Attorney General was joined as a notice
party in the case of 
M.E.C. v. J.A.C.
For completeness, reference should be made to two further decisions. 
The first of those is the case of 
D.T. v. F.L.
 [2002] 2 I.L.R.M.
152. 
That was a decision of the High Court which concerned a Dutch divorce. 
The applicant and the respondent had married in Ireland
in 1980. 
Both parties were resident and domiciled in Ireland at that time. 
In 1987 the parties moved to the Netherlands but in 1992
marital difficulties arose and the applicant and children returned to Ireland. 
The applicant then sought a decree of judicial separation
on the 6th July, 2000. 
By way of response, the respondent pointed out that he had obtained a divorce on the 13th July, 1994 in the
Netherlands and he further claimed that that divorce was entitled to recognition in the State pursuant to the provisions of s. 29(1)(d)
or s. 29(1)(e) of the Family Law Act 1995. 
He claimed that he had acquired a domicile of choice in the Netherlands at the time the
divorce was granted and he further claimed that the divorce was entitled to recognition on the basis of residence in the Netherlands
as that was the basis upon which it had been granted in that jurisdiction. 
By virtue of that fact he said that the divorce was entitled
to recognition in the State. 
Morris P. concluded that the divorce was not entitled to recognition in the State and it was held that the
onus was on the respondent to prove that he had relinquished his domicile of origin and acquired a domicile of choice in the
Netherlands. 
It was concluded that the respondent was domiciled in Ireland on 13th July, 1994 and in the course of his judgment
Morris P. referred to the decision in 
McG. v. W
. 
It is of interest to note that while the decision in 
McG. v. W.
 was considered in the
course of the case, it does not appear that the decision in the case of 
M.E.C. v. J.A.C.
 was cited in the course of the case although
that judgment was delivered in March of the same year as the judgment of Morris P.
Morris P. at p. 158 said as follows:
“Prior to 
McG v W
 [2000] 1 I.L.R.M. 107 a divorce based on residence as conferring a jurisdiction had not been held to be
entitled to recognition in this jurisdiction. In that case McGuinness J. had to consider a set of facts which included the
fact that a divorce was granted in England in 1985 based upon the residence of the relevant party. Of significance is the
fact that the divorce was granted prior to the coming into operation on the 2nd October, 1986 of the Domicile and
Recognition of Foreign Divorces Act 1986. McGuinness J. held that the laws governing recognition of foreign divorce in our
jurisdiction prior to 1986 were Common Law or Judge made and accordingly on the authority of 
W. v W
. [1993] 2 I.R. 476;
[1993] I.L.R.M. 294 she recognised the court’s entitlement and indeed, obligation given certain circumstances, to change
such laws. On this basis and for the reasons stated in her judgment she changed the common law rules as to entitlement
to recognition holding that, in the instant case, the divorce based on the residence of the party in question in England
entitled the divorce to recognition in this jurisdiction. With that decision I am in respectful agreement. However, as I say
the divorce with which the learned Trial Judge had to deal was one granted prior to the 2nd October 1986. The divorce
with which I am concerned was granted after the coming into operation of the Act.
The question now is this: what effect, if any, did the passing of this Act have upon the court’s entitlement to alter or
vary the rules as to recognition and indeed whether these rules are still regulated by common law. It would follow that if
they are regulated by common law then in an appropriate case the court is entitled to alter them. If the rules are
regulated by statute then the court is not, as to do so would be a trespass upon the function of the legislature.”
He concluded at p. 159:
“I have no doubt however that since it was open to the court in 
McG v W (No. 1)
 [2000] 1 I.L.R.M. 107 to bring the
common law in line with current policy it was correct to do so. I believe that if there was a jurisdiction still vested in me I
should do so in this case. However, in my view the passing of the 1986 Act removes this jurisdiction from me.
Residence is not a basis for recognition under the Act.”
Clearly, Morris P. in considering the decision in 
McG. v. W.
 was of the view that it was appropriate to have altered the common law
rules in relation to the recognition of foreign divorces in the manner set out by McGuinness J. in the case of 
McG. v. W
. but equally,
he was of the view that the enactment of the 1986 Act precluded him from relying on residence as a ground for recognition following
the introduction of that Act in respect of any divorce granted after the Act came into force. 
So far as the position post-1986 is
concerned, the statutory provisions govern the situation and clearly in those circumstances, the recognition of foreign divorces
granted after 1986 can only be determined in accordance with statutory provisions and those statutory provisions are clear in their
intent, namely, that a foreign divorce will only be recognised on the basis of domicile. 
It is unfortunate that Morris P. was not referred
to the decision of Kinlen J. in 
M.E.C. v. J.A.C.
 when he was considering this difficult question.
The final case to which reference might be made is a decision of the Supreme Court. 
That is the decision in the case of 
P.K. v. T.K.
[2002] 2 I.R. 186. 
That case concerned the recognition of a divorce granted in New York. 
The High Court had considered the question
as to whether or not the divorce was entitled to recognition based on domicile. 
The divorce in question in that case was one granted
in 1980. 
Having granted recognition to that divorce, the applicant who had brought proceedings in this jurisdiction seeking a decree of
divorce pursuant to the provisions of the 1996 Act, was not entitled to seek a divorce in this jurisdiction. She appealed and was
unsuccessful in her appeal. 
Reference was made in the course of submissions to a passage from the judgment of Fennelly J. in which
he observed:
“There was no real dispute at the hearing of the appeal as to the applicable legal principles. Both parties accepted that
the recognition of the New York decree depended entirely on whether the applicant had a New York domicile at that time.
Since the decision in 
W. v. W.
 [1993] 2 I.R. 476, domicile of one party is enough for recognition. No broader basis for
recognition of foreign divorces was advanced. In this connection, it has to be observed that parts of the judgment of the
trial judge quoted above appear to imply that it may be significant that the applicant approbated the decree. 
The present
case, must, however, in the existing state of the law, be decided exclusively by reference to the domicile of the applicant
at the time of the decree.”
In the course of submissions herein the respondent made the point in reliance on this case that that decision ought not to be relied
upon to support the conclusion that domicile is the only criteria for recognition of a foreign divorce and suggested that the last
sentence in the passage quoted above left open the possibility that the Court might consider a broader basis for recognition of foreign
divorces. 
On that last point, I think that it would be wrong to read that suggestion into that sentence. 
What was uppermost in the
mind of Fennelly J. in the course of that part of the judgment was the question of whether or not the concept of estoppel might have
a part to play in the question of recognition having regard to the fact that the applicant in those proceedings had participated in the
divorce proceedings in New York. 
Indeed Fennelly J. continued that passage by saying as follows:
“Walsh J., in 
Gaffney v. Gaffney
 [1975] I.R. 133 at p. 152 stated that, since recognition of divorce decrees of another
jurisdiction, depends on status which confers jurisdiction, there can be no place for rules based on estoppel which might
prevent a party giving evidence on that issue. That dictum has not been challenged in this case. The evidence to which
objection was taken in that case was evidence which the plaintiff had given to show that she had been coerced by
threats into presenting a divorce petition in England, a petition which on its face asserted that the plaintiff was domiciled
in England. 
. . . For my own part, I would not wish categorically to exclude the possibility that a person who had so acted
in relation to a decree of divorce granted by a foreign jurisdiction might be precluded from questioning its validity.
However, the issue has not been argued on this appeal and the facts would not appear to support even a generous
application of the doctrine of estoppel.”
I think it can be seen from the passage above that Fennelly J. was not making the suggestion that there might be an alternative basis
to domicile for recognising a decree of divorce granted in a jurisdiction other than a jurisdiction in which one of the parties to the
divorce was domiciled, as submitted on behalf of the respondent.
Other legal developments
It would also be appropriate to refer to European law in relation to the recognition of foreign divorces. 
The first relevant provision is
contained in Council Regulation 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters
and in matters of parental responsibility for children of both spouses (Brussels II Regulation) which came into force on the 1st March,
2001. 
Subsequently it was replaced by Council Regulation EC No. 2201/2003 which is known as Brussels II 
bis
 which came into effect
on the 1st March, 2005. 
Article 3(1) of Brussels II 
bis
 contains the following provisions in relation to the general jurisdiction in relation
to divorce and other matters as follows:
“1. 
In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the
Member State
(a) in whose territory:
– the spouses are habitually resident, or
– the spouses were last habitually resident, insofar as one of them still resides there, or
– the respondent is habitually resident, or
– in the event of a joint application, either of the spouses is habitually resident, or
– the applicant is habitually resident if he or she resided there for at least a year immediately before the
application was made, or
– the applicant is habitually resident if he or she resided there for at least six months immediately before
the application was made and is either a national of the Member State in question or, in the case of the
United Kingdom and Ireland, has his or her ‘domicile' there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile' of both
spouses.
2. 
For the purpose of this Regulation, ‘domicile' shall have the same meaning as it has under the legal systems of the
United Kingdom and Ireland.”
Article 21 of Brussels II 
bis
 is also of significance. 
It provides as follows:
“1. 
A judgment given in a Member State shall be recognised in the other Member States without any special procedure
being required.”
The provisions of Brussels II and Brussels II 
bis
 came to be considered in a decision of the Supreme Court in the case of 
D.T. v. F.L
.
[2009] 1 I.R. 434. 
The parties in that case were those involved 
in the earlier decision of the High Court in the case of 
D.T. v. F.L.
[2001] 2 I.L.R.M. 152, in which the judgment of Morris P. has previously been referred to. 
As pointed out earlier, the High Court
refused the declaration sought by the respondent in the earlier proceedings that the decree of divorce obtained in the Netherlands
should be recognised in the State. 
The High Court had held that the respondent was domiciled in Ireland and that residence was not
the basis for recognising the divorce obtained in the Netherlands. 
Having unsuccessfully appealed the matter to the Supreme Court,
the respondent commenced a further challenge to the applicant’s entitlement to seek a decree of judicial separation and sought
orders that the High Court should decline to exercise jurisdiction in respect of the claims of the applicant for any ancillary reliefs
relying on a number of EU regulations. 
The respondent sought to argue that the relevant EU regulations had retrospective effect.
Fennelly J. in giving the judgment of the Supreme Court said:
“It is a general principle of law, widely recognised in different systems of law that provisions intended to have a
retrospective effect must be clearly expressed so as to lead to that result. As the Court of Justice held, at para. 20 of its
judgment in 
Firma A. Racke v. Hauptzollamt Mainz
 . . . , cited by the applicant, ‘although in general the principle of legal
certainty precludes a Community measure from taking effect from a point in time before its publication, it may
exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those
concerned are duly respected’.” (Paragraph 73).
It has been argued on behalf of the respondent in these proceedings that by virtue of the changes brought about by the EU
regulations and the consequence that a decree of divorce granted in one Member State will be recognised in another Member State
without any special procedure being required that this is indicative of a clear policy as to the recognition of foreign divorces (save in
the case of Denmark which obtained a derogation from the regulations). 
It is on the basis of the developments in policy and relying on
the decision of McGuinness J. in the case of 
G. McG. v. W
. that the respondent contends that the divorce obtained in the U.K. in this
case should be recognised in this jurisdiction. 
Decision
Article 41.3 of the Constitution provides as follows:
“No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage
under the law for the time being in force within the jurisdiction of the Government and Parliament established by this
Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party
to the marriage so dissolved.”
At the heart of this case is the question as to what is a subsisting valid marriage under the law for the time being in force within the
jurisdiction as framed in the question posed in the Consultative Case Stated, namely:
“Does the law of the State recognise the validity of a foreign divorce lawfully granted prior to the 2nd October, 1986 in a
country where neither party to the marriage in question was domiciled at the date of the institution of the divorce
proceedings but where one party was resident on that date?”
The question posed can only be answered following a consideration of the applicable common law rules and the conflicting judgments
of the High Court in the cases of 
McG. v.
 
W.
 and 
M.E.C. v. J.A.C.
 A determination as to which of those judgments correctly reflects
the law in this jurisdiction requires to be made.
A number of observations can be made. 
First of all, the 1986 Act governs the recognition of foreign divorces from the 2nd October,
1986. 
The basis of such recognition is domicile. 
The provisions of Brussels II 
bis
 apply to divorces in EU states (except Denmark) in
respect of divorces subsequent to the 1st March, 2005 and provide that jurisdiction is based on habitual residence. 
It further provides
for recognition of a divorce without any special procedure being followed. 
Article 22 of Brussels II 
bis
 sets out the grounds for the
non-recognition of judgments relating to divorce. In addition to those provisions, the Fifteenth Amendment of the Constitution
provided at Article 41.2 for divorce and provided, 
inter alia
, that a court may grant a dissolution of marriage where it is satisfied that
conditions prescribed by law are complied with. Those conditions include the provisions of the 1996 Act which permitted an
application for a divorce to be made where either of the spouses was domiciled in the State at the time of the institution of the
proceedings or where either of the spouses had been ordinarily resident in the State for a period of one year on that date.
The final statutory provisions to which I should refer at this point are the provisions as to jurisdiction for the grant of a divorce
contained in the Family Law Divorce Act 1996. 
As I have already said the provisions of the Family Law Divorce Act 1996 provide that
the jurisdiction in relation to divorce may be exercised if either of the spouses concerned was domiciled in the State on the date of
the institution of the proceedings or either of the spouses was ordinarily resident in the State throughout the period of one year
ending on the date of the institution of the proceedings. 
Thus, two bases are provided for the exercise of the Court’s jurisdiction to
grant a divorce.
It can be seen that here are a number of different criteria applicable to the recognition of foreign divorces in this jurisdiction. 
A
foreign divorce granted after the 2nd October, 1986 will be recognised in this jurisdiction provided that it was granted in the courts of
a state where one or other of the spouses was domiciled.
A divorce granted after the 1st March, 2001 but before the 1st March 2005 in an EU state will be recognised on the basis of habitual
residence in accordance with the terms of the Brussels II Regulation. 
A divorce granted after the 1st March, 2005 in an EU State will
be recognised on the basis of habitual residence in accordance with the provisions of Brussels II 
bis
 which came into force on that
date. 
(It should be remembered that in the case of Brussels II and Brussels II 
bis
, Denmark obtained a derogation from the provisions
of the Council Regulation).
The decision of the Supreme Court in the case of 
W. v. W
. referred to above makes it clear that a foreign divorce will be recognised if
granted prior to the 2nd October 1986 in a state where one or other of the spouses was domiciled at the date of the institution of
the proceedings.
If the decision of the High Court in the case of 
McG. v. W.
 is correct then a foreign divorce would also be entitled to recognition on
the basis of residence if but only if the divorce in question was obtained prior to the 2nd October, 1986 as after that date, the
provisions of the 1986 Act are applicable.
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. 
She did so having regard to the decision in 
W. v.
W
. which modified the then existing common law rule as to the dependent domicile of spouses. 
In that regard she referred to the
judgment of Blayney J. at page 505 which I have referred to above but which I think it would be helpful to refer to again. 
Blayney J.
had stated:
“In my opinion, such recognition would be consistent with what the present policy of this Court should be. The Court may
not leave out of account the provisions of the Domicile and Recognition of Foreign Divorces Act, 1986, which, having
abolished the rule as to the dependent domicile of a married woman, provided as follows in s. 5 sub-section (1) [he then
quotes the sub-section and continues]:
While this provision applies only to divorces granted after the statute came into force on the 2nd October, 1986, it seems to me that
it would be wholly consistent with the statute that this Court, as a matter of public policy, should independently modify the judge-
made rule in order to do justice to the plaintiff.”
McGuinness J. took the view that in deciding “what the present policy of the Court should be” she “may not leave out of account” the
provisions of the Family Law (Divorce) Act 1996. The words in quotation marks were taken by her from the judgment of Blayney J. in
W v. W
. She added that in those circumstances it did not appear to her to be inconsistent with the 1986 Act that the Court should
independently modify the judge-made rule in order to do justice to the parties in the case before her.
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. In W v. W., Blayney J. first considered
whether the common law rule in relation to the recognition of foreign divorces could be modified. He concluded that the common law
rules were judge made laws and as such could be modified in accordance with “the current policy of the court”. In modifying the
common law rule, he stated that the court should consider the rule applicable at that time which was contained in the Act of 1986
and, having done so, he concluded that the common law rule applicable prior to the 2nd October 1986 should be modified in line with
the rule contained in the 1986 Act.
Thus, when the question of a further modification of the common law rule arose in the case of 
McG. v. W
., it was inevitable that in
trying to discern the public policy underlying the common law rule consideration would be given to the changes brought about by the
introduction of divorce in this country as a result of the Fifteenth Amendment of the Constitution and the legislation giving effect to
that amendment. The Family Law (Divorce) Act 1996 provides for jurisdiction to grant a divorce in this jurisdiction on the basis of
either residence or domicile. 
In the case of residence, it is necessary for one of the spouses to have been ordinarily resident in the
State throughout the period of one year ending on the date of institution of proceedings. 
No such residential requirement is necessary
in the case of a party domiciled in the State on the date of institution of the proceedings.
In considering what the present policy of the court was, it was appropriate for McGuinness J. to take into consideration the changes
brought about by the Family Law (Divorce) Act 1996. Having said that, whilst it is undoubtedly the case that the Oireachtas provided
for the grant of divorce on two separate bases in the courts of this jurisdiction, the legislature did not at the same time vary or alter
the provisions of the Act of 1986 in relation to the recognition of foreign divorces. If the Oireachtas considered it appropriate to do
so, there was no reason why such a change could not have been introduced. Thus, it is my view that the policy of the court to be
derived from the current statutory provisions in relation to the recognition of foreign divorces must be found in the 1986 Act which
expressly provides for recognition of foreign divorces on the basis of domicile alone. 
If it were not for the 1986 Act, it would be open
to argue that public policy requires the recognition of foreign divorces either on the basis of one year’s residence or alternatively on
the basis of domicile. However, the 1986 Act is clear and is the law. For that reason, I find it difficult to see how a modification of the
common law rule to provide for recognition on the basis of residence could be said to be in line with the present statutory rule.
Contrast the position in 
McG. v. W.
 with the facts of 
W. v. W
. 
In the latter case the question that arose was the status of the
concept of the dependent domicile of a wife prior to the enactment of the 1986 Act. 
The Act clearly demonstrated public policy by
abolishing the concept of dependent domicile. 
It can be seen that the approach of the Court in modifying the common law rule was
entirely consistent with the statutory policy apparent in the provisions of the Act of 1986. 
The approach in 
McG. v. W
. relied on the
provisions of the 1996 Act to the exclusion of the existing and extant provisions of the Act of 1986 in relation to recognition. 
Nothing
in the Act of 1996 modifies or varies in any way the provisions of the Act of 1986 in relation to the recognition of foreign divorces. 
For
that reason, it seems to me that there was no basis for modifying the common law rule in the case of 
McG. v. W.
 The Act of 1986
expressly provides the ground upon which foreign divorces post-1986 can be recognised and I can see no basis upon which the courts
could adopt a different approach for recognition in respect of a foreign divorce granted prior to 1986. I think it goes without saying
that if a common law rule is to be modified in accordance with the present policy of the courts, such policy should be in line with and
not in conflict with public policy as demonstrated in legislation
The fact that the law in relation to the jurisdiction for granting a divorce in the State and the law in relation to the recognition of
foreign divorces use different criteria may appear to be inconsistent but that is not a reason for modifying the common law rule.
If the judgment in the case of 
McG. v. W
. was correct, that would lead to the anomaly that foreign divorces granted prior to the 2nd
October, 1986 could be recognised on the basis of residence whilst those post-1986 could be recognised only on the basis of
domicile.
It could be argued that the appropriate course to take would be for the legislature to provide for the recognition of foreign divorces
on the basis of residence and that such a change would have the merit of being consistent with the terms upon which a divorce may
be granted in this jurisdiction and with EU provisions for recognition of foreign divorces. 
However, it is quintessentially a matter for the
Oireachtas to legislate and not for the courts. Kinlen J. in the course of his judgment in 
M.E.C. v. J.A.C
. at page 412 observed:
“The mere fact that the Oireachtas is slow to deal with many problems in the matrimonial field does not in itself give
support to the court's jurisdiction to legislate.” Kinlen J. added at page 412:
“If the grounds of recognition are retrospectively extended to include the residence of either party then that will
have serious implications for the way in which the State and many of its citizens have ordered their affairs.”
Those remarks are just as valid today. 
Conclusion
McG. v. W
. sought to modify the common law rule in relation to recognition of foreign divorces in respect of the period prior to the Act
of 1986. 
The basis upon which a common law rule can be modified was identified in the decision of this Court in W. v. W., in which it
was recognised that common law rules are judge-made law and may be modified, if necessary, having regard to public policy. 
In that
case, the common law rule in relation to the dependent domicile of wives was modified to bring it into line with the statutory rule
provided for in the Act of 1986. 
It is undoubtedly the case that the Family Law (Divorce) Act 1996 enables divorces to be granted by
reason of residence in the State but if the legislature had wished to modify the position in relation to the recognition of foreign
divorces, it was open to the legislature to do so at that time or indeed at any subsequent time. 
No such change has been brought
about and in circumstances where the 1986 Act governs the recognition of foreign divorces on the basis of domicile, I fail to see how
it could be said that the present policy of the court is such that the common law rule applicable to foreign divorces granted prior to
the 2nd October 1986 may be modified. For that reason I regret to say that in my view, 
McG. v. W
 was not correctly decided.
It is unfortunately the case that the law in respect of the recognition of foreign divorces has developed in a way which provides for
different criteria for the recognition of foreign divorces depending on the happenstance of where and when the divorce was granted.
For example, the recognition of a divorce granted in New York will be based on the domicile of one of the parties; a divorce granted in
an EU State after the 1st March 2005 will be recognised on the basis of habitual residence in accordance with the provisions of
Brussels II 
bis
 which came into force on that date. Had the divorce at issue in this case been granted after the 1st March 2005, the
provisions of Brussels II 
bis
 would have applied and on the facts of this case it is difficult to see any basis which could have precluded
its recognition. Is there any justification for a system of recognition based on habitual residence for one group of people while for
another group recognition is based on domicile? Given the disparity between the different criteria for recognition of foreign divorces in
this country and the importance of permitting people to have clarity and uniformity in relation to their status, it seems to me that it is
desirable to reconsider the legislative position in relation to this difficult issue so that there could be, so far as is possible, a uniform
approach to the recognition of foreign divorces. After all, people are surely entitled to have certainty as to their marital status.
In conclusion, having regard to the circumstances of this case, I would answer the first question raised as follows:
1. “(1) Does the law of the State recognise the validity of a foreign divorce lawfully granted prior to the 2nd
October, 1986 in a country where neither party to the marriage in question was domiciled at the date of the
institution of the divorce proceedings but where one party was resident on that date?
No.
Having regard to that answer, I am of the view that it is not necessary to answer the second and third question.