Recognition of Foreign Divorce in Retention applications - Domicile v. Residence

By Taise Azevedo & Valquiria Silva

We are delighted to share a recent successful outcome in an application for the review of a residence retention decision. This case underscored the importance of distinguishing between residence and domicile when seeking to retain residence rights following a foreign divorce.

Our client is a Brazilian national who arrived in Ireland as a student in 2008 and later obtained a 'Stamp 4 EUFam permission' based on his marriage with an EU citizen. He faced a refusal of his residence retention application after his divorce in 2021. The refusal was due to the fact that both spouses were residing in Ireland during the divorce, making it ineligible for recognition.

We submitted a review application on the basis of Regulation 10 (2) of 2015, which allows family members to retain residence rights post-divorce if the marriage lasted three years, including one year in the State and also on Section 5 (1) of the Domicile and Recognition of Foreign Divorces Act, 1986, which permits recognition when either spouse is domiciled (not residence) in the country where the divorce was granted.

Our client met these criteria, with over five years of marriage and more than four years of 'Stamp 4 EUFam' permission. And we provided evidence that even though our client was residing in Ireland when the divorce took place, he maintained his Brazilian domicile, including strong family ties, property ownership, health insurance payments, professional registration, and active involvement in the Brazilian community in Dublin.

Our legal team referred to precedents, highlighting the crucial distinction between residence and domicile in this case. We also emphasised the significance of one's intention to remain in a foreign jurisdiction when determining domicile.

As a result, our review application was approved, and our client was granted a permission for five years. This case underscores the importance of seeking legal advice and presenting comprehensive evidence in immigration cases that deal with residence and domicile matters.

If you have concerns about divorce recognition or residence retention in Ireland, contact our experienced immigration team at 018735012 or info@mcgrathmullan.ie.

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McGrath Mullan Solicitors

Phone: +353 (0) 1 873 5012

Fax: +353 (0) 1 873 5024

info@mcgrathmullan.ie

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