Probate Practice and Foreign Divorces
25 October 2021
Over the last two posts, we have looked at the question of the validity of foreign divorces in Ireland. Many foreign divorces will be recognised in Ireland by virtue of the Domicile and Recognition of Foreign Divorces Act 1986. However, foreign divorces are also recognised in Ireland now by virtue of the Brussels II Regulation. Brussels II Regulation applies to recognition of EU foreign divorces granted after 1 March 2001 but before 1 March 2005. Brussels II bis covers EU foreign divorces after 1 March 2005. Essentially both provide that divorces granted in EU members states will be recognised in Ireland on the basis of habitual residence.
Even though we have these rules in force, the practice of the probate office is not automatic. In fairness to the probate office if one has a foreign divorce of a client from Poland, how does the probate office know that the testator or their ex spouse was domiciled or habitually resident in Poland when the divorce was granted and thus bringing the case within the Irish regime?
In these cases then the probate office will insist on an order from the court regarding a declaration of marital status. Note that this applies in intestacy cases. Not in testate cases.
There are two potential court orders here. The first is that of s. 29 of the Family Law Act 1995 which relates to an application to the Circuit Court as to a Declaration as to Marital Status. The other option is to make your application to the High Court as part of a s. 27(4) of the Succession Act. Much will depend on the facts of each case, the availability of notice parties or other circumstances. Advice from counsel is generally required.
In either case, bottom line is, you cannot proceed with an intestacy in Ireland where the testator was part of a foreign divorce without an order from the court recognising the divorce.