Administration in cases of deceased foreign divorced testator

21 October 2021


Definitely a winner for the catchy-est blog title ever! This is the second of a what was initially going to be a two part blog but is now a three-part blog, on the administration of estates of those who are divorced. We dealt with will cases in our last blog. So if a testator makes a will it is administered by the executor. If the testator thinks he or she is single because they are divorced but it transpires that the divorce is not valid, then, that does not impact on the validity of the appointment of the executor or the will. It does have of course significant impact on the distribution of assets if the legal right share will disrupt the legacies.

How do you know a person is validly divorced?

An excellent question and I’m glad you asked. For Irish married couples (ie those married in Ireland and still living in Ireland) it will be clear. An order of divorce from the Circuit Court or High Court will demonstrate that. The real question is what if the parties were divorced abroad.

People can form new relationships later in life

Recognition of Foreign Divorces

The answer to this is surprisingly straightforward. This is set out in the Domicile and Recognition of Foreign Divorces Act 1986 (which commenced on the 2nd October 1986). This states that a foreign divorce will be recognised in Ireland if the divorce was granted in a country where at least one of the persons was domiciled at the date of the divorce.

This remains the rule in Ireland with respect to the recognition of foreign divorces, although there are modifications with respect to Brussels II Regulation and Brussels II bis, which is outside the scope of this blog.

It is important to note that recognition of foreign divorces is based on domicile and not residence or habitual residence or citizenship.

Prior to the introduction of the 1986 Act, the rule was thought to be that a foreign divorce will only be recognised in Ireland prior to 1986 if both parties to the marriage were domiciled in the country where the divorce was granted. It was also thought that this would be satisfied if the divorce was granted in the country of a mans domicile as his spouse had adopted his domicile.

The case of W v W [1993] 2 IR 476 made it clear that the rule that a wife adopts the domicile of her husband did not survive the enactment of the constitution. This was affirmed in the Supreme Court decision of Dunne J in H v H [2015] IESC 7. Therefore the law prior to 1986 matches that of post-1986 in that a divorce will be recognised in Ireland where one of the parties was domiciled in the country of the foreign divorce.

Domicile is a common law concept

So take the example of Mary and Joe, who meet in Donegal in 1970. The move to England, as Mary has been promoted, but they always intended to return to Ireland, and the move to England was temporary. Joe is not happy in England and returns home in 1975 on the basis that Mary will soon return once she finishes her employment. She stays for another year and continues to go to the Irish centre in Kilburn, where she meets and falls in love with Michael (originally from Ballinrobe). She now realises that Joe is a pale imitation of Michael and she must separate. Michael wants to live in Ireland with Mary, and if they are married they will set up home in Ireland. Mary applies for divorce in England in 1980 and is granted a divorce and marries Michael. Michael and Mary return to Ireland in 1982 where they live for the rest of their lives.

Under the above rules Mary’s divorce would not be recognised in Ireland. She was not domiciled in England when she applied for the divorce. Nor was Joe. While Mary was living and resident in England, she did not adopt English domicile as it was clear that she had not ousted her domicile of origin, being Ireland, and had always intended on returning home.

What impact does this have on probate practice?

This is now dealt with in part three of this blog.