Family ties

The new Family Law Act changes more than just the minimum living-apart period.

The Family Law Act 2019 was enacted on 25 October 2019 and is expected to be commenced very shortly.

The act follows on from the referendum held on 24 May, in which the people voted to amend the Constitution to remove the minimum living-apart period for spouses seeking a divorce and to replace the text of article 41.3.3 on foreign divorces.

The practical effect

The practical effect of the act (once commenced) is that the living-apart requirement has been reduced for divorce proceedings and has been clarified for those spouses living under the same roof, for both divorce and civil-partnership actions:

• The living-apart requirement for couples required before initiating divorce proceedings will be reduced by amending section 5 of the Family Law (Divorce) Act 1996 to reduce the minimum living-apart period specified in that act to two years during the previous three years (reduced from four during the previous five years),
• The phrase ‘living apart’ is clarified in the context of spouses who still live under the same roof, and they will be considered as living apart from one another if the court is satisfied that, while living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship. This change in the definition of living apart will make it easier for couples residing together, though living apart, to apply for divorce. Section 3(1)(b) of the 2019 act states that a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature. These amendments will apply to proceedings for the grant of a decree of divorce under the act of 1996 that are instituted on or after the date on which section 3 of the 2019 act comes into operation, or that have been instituted, and have not been concluded, prior to such date.

Intimate and committed relationship

The phrase intimate and committed relationship was used in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 when defining a cohabitant in section 172(1) as one of two adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship.

However, the 2010 act, unlike the 2019 act, contains a number of factors that the court must take into account, including all the circumstances of the relationship and, in particular (a) the duration of the relationship, (b) the basis on which the couple live together, (c) the degree of financial dependence of either adult on the other, and any agreements in respect of their finances, (d) the degree and nature of any financial arrangements between the adults, including any joint purchase of an estate, or interest in land, or joint acquisition of personal property, (e) whether there are one or more dependent children, (f) whether one of the adults cares for and supports the children of the other, and (g) the degree to which the adults present themselves to others as a couple.

Further guidance

In the case of the 2019 act, the Oireachtas decided not to specify any further factors to be taken into account. We must, therefore, look at the case law for further guidance (see the analysis in Baker J in DC v DR ([2015] IEHC 309), paragraph 83 and following).

McA v McA ([2000] 1 IR 457), the leading case on living apart before the change to the 2019 act, may still be relevant, as McCracken J analysed the concept of living apart.

A similar provision clarifies the term ‘living apart’ in the same way as when dealing with dissolution of civil partnerships.

This change will only apply to proceedings for the grant of a decree of dissolution of a civil partnership that are instituted on or after the date that section 4 of the 2019 act comes into operation, or have been instituted, and have not been concluded, prior to such date.

British divorces

It provides for the recognition of divorces, legal separations and marriage annulments granted under the law of Northern Ireland, Scotland, England and Wales, and Gibraltar, in the event of a Brexit without an agreement that applies to this area of law.

A divorce, legal separation or marriage annulment granted under the law of Britain or Gibraltar that, prior to the coming into operation of this section, was recognised under Brussels II, will continue to be recognised.

Certain divorces, legal separations, and marriage annulments granted in Britain or Gibraltar after the coming into operation of section 7 will be recognised if, at the date of the institution of the proceedings relating to the divorce, legal separation or marriage annulment concerned, at least one of the following requirements is satisfied:

• The spouses were habitually resident in a relevant jurisdiction (Britain or Gibraltar),
• The spouses were last habitually resident in a relevant jurisdiction, insofar as one of them still resided there,
• The respondent was habitually resident in a relevant jurisdiction,
• The applicant was habitually resident in a relevant jurisdiction, and  had resided there for at least a year immediately prior to that date,
• Either of the spouses was domiciled in a relevant jurisdiction.

A divorce, legal separation or marriage annulment from Britain and Gibraltar will not be recognised if: 

• Such recognition is manifestly contrary to public policy,
• Where the judgment in the proceedings relating to the divorce, legal separation or marriage annulment concerned was given in default of appearance, if the respondent was not served with the document that instituted the proceedings, or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defence, unless it was determined that the respondent had accepted the judgment unequivocally,
• The relevant judgment is irreconcilable with a judgment given in proceedings between the same parties in the State, or
• The relevant judgment is irreconcilable with an earlier judgment given in a state other than the State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the State.

Judicial separation changes

There are changes to the grounds for judicial separation. There has been a harmonisation of the concept of ‘living apart’ for judicial separation, as well as divorce. The phrase ‘in an intimate and committed relationship’ has been imported into section 2 of the 1989 act by section 2(1)(c) of the 2019 act.

The 2019 act reduces to one year the minimum living-apart period of three years that applies to judicial separation applications in cases where the respondent does not consent to the decree of judicial separation being granted (see section 2(1)(e) of the 1989 act).

This change will apply to proceedings for the grant of a decree of judicial separation under the act of 1989 that (a) are instituted on or after the date that the section of the 2019 act comes into operation, or (b) to proceedings that have been instituted, and have not been concluded, prior to such date.

Qualified cohabitants

The reduced living-apart criterion for divorce is reflected by a change to the criteria permitting a person to be considered as a qualified cohabitant by amending section 172(6) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

A person may still be a qualified cohabitant if either cohabitant is married to another person, provided they were living apart for two of the previous three years.

This reduces the pre-existing requirement in line with the reduction in the living-apart requirement for divorce, from four of the previous five years to two of the previous three years.

The relationship must not have ended before the coming into operation of section 4(2) of the Family Law Act 2019.

The 2019 act is to be welcomed for introducing these much-needed reforms to the practice of family law.