Why did the Court in Ireland refuse to enforce a Dutch divorce decree? Don’t EU states give comity to each others’ divorce decrees?
I was reading here on an international divorce blog about this divorce case where the courts in Ireland basically refused to enforce a Dutch divorce decree. What ever happened to the EU cross border divorce rules? Perhaps this case pre-dated them….Yes. I think that is what happened here…..
Apparently, the husband in the case obtained a Dutch divorce then moved to Ireland thinking he was a divorced man. Yet seven years later, his wife brought a divorce action in the courts in Ireland and the Irish courts basically said that they had jurisdiction over the new action, since they are under no obligation to enforce a decision in the Dutch courts….interesting…this must be an old case. I can’t imagine that this happened in, say, 2010 or later…..
Here’s the text of the article as linked to above:
In an Irish case, T. v. L.  IESC 48, a husband sought the Irish courts’ recognition of his 1994 Dutch divorce under EU law. The couple had lived briefly in the Netherlands in the early 1990’s. Towards the end of his stay there, the husband filed for divorce in a Dutch court and then returned to Ireland. In September 1994, the Dutch court granted the divorce and spousal maintenance without deciding child custody or support.
Six years later in 2000, the wife sought judicial separation or divorce in an Irish court. The husband claimed that they were already divorced. The Irish court however disagreed, holding the Dutch divorce invalid under private international law because the husband had not acquired a Dutch domicile of choice at the time of the Dutch divorce.
To dispute that holding, the husband busted out EU law: the Brussels Convention, Brussels I Regulation, Brussels II Regulation, and the Treaty on European Union (but he really meant the Treaty Establishing the European Community).
First, the husband argued that any order from the Irish court would violate the Brussels Convention, which was in effect at the time of the proceedings, and risk conflicting judgments between the Dutch and Irish courts.
The Irish Supreme Court examined the case law surrounding the Brussels Convention and ruled that the Irish courts were not bound to enforce the Dutch divorce or maintenance decision because doing so would conflict with Irish domestic rules regarding private international law.
Second, the husband argued that Brussels I Regulation bound the Irish courts to recognize the Dutch orders. After a lengthy analysis of the Brussels Regulation’s application, the Irish Supreme Court decided that it would not apply retroactively in this case.
Finally, the husband tried to directly apply the EC Treaty–Articles 61, 65, and the right to free movement of persons–to force the court to recognize the Dutch order. Without much analysis, the Irish Supreme Court rejected these arguments.
Finally, the court declined to refer the question to the Court of Justice of the European Union (“CJ”) under Article 234 of the then-EC Treaty. The Irish Court saw this issue as an acte clair(see the CJ’s CILFIT decision) and thus declined to refer for preliminary ruling.
So, after 8 years of delays, the wife had the chance to resolve her claim in the Irish courts
Somehow, this case does not make a lot of sense. Both Ireland and the Netherlands are member states of the EU so why didn’t the new cross border divorce rules for EU states apply? Even though the laws were finalized in December 2010, clearly the Irish court was aware that the Commission was working on this rule that would enable EU states to give comity to each other’s divorce rulings?
Last month we did a post about cross border divorces in the European Union. The new rules will enable couples like the one here to decide which country’s laws to apply to their divorce. Here’s some information on that from www.eubusiness.com:
The new legislation will enable couples with different nationalities, those living apart in different countries, or those living together in a nation other than their home country, to decide which country’s laws apply to their divorce.
“International couples can encounter arbitrary legal problems that turn the tragedy of divorce into a financial and emotional disaster,” said EU Justice Commissioner Viviane Reding.
“I do not want people in the EU to be left to manage complicated international divorces alone. I want them to have clear rules.”
Currently 20 EU countries determine which country’s laws apply based on nationality and long-term residence, while seven apply their own domestic law.
The 14 countries that will apply the rules are Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain.
Courts will have a common formula for deciding which country’s laws apply when couples cannot agree themselves.
Hmmm…neither Ireland nor the Netherlands opted into the new rules….still, I can’t imagine such a thing would happen post-2010. It is illogical. Too bad for the husband in this Irish/Netherlands divorce case that the new cross border divorce rules for EU states didn’t come a few months earlier. Now I see why they needed to formalize a rule in the EU. That situation was just a little bit ridiculous, IMHO.