Living apart period
“It is the Government’s intention to reduce the living apart period to a minimum of two out of the preceding three years and to do so by way of ordinary legislation.”
If the referendum is passed, a bill to amend section five of the Family Law (Divorce) Act 1996 will be introduced.
The constitutional requirements that the court be satisfied that there is no prospect of reconciliation and that proper provision exists or will be made for spouses and children will continue.
The minister also said the referendum will also provide an opportunity to modernise the provision on recognition of foreign divorces in Article 41.3.3.
The new text will clearly provide that the Oireachtas may legislate for the recognition of foreign divorces granted under the civil law of another state.
The amendments will be brought forward by way of amendments to the Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016, a Private Members' Bill introduced by Minister (then Deputy) Josepha Madigan.
This Bill is currently awaiting Report Stage in Dáil Éireann.
Complex
The minister said “Over time, we have learned that complex questions of social policy are best dealt with through detailed legislation in the Oireachtas rather than within the confines of our Constitution.
“The fundamental principles and protections concerning divorce will not change. However, removing the time period from the Constitution would give the Oireachtas greater flexibility to legislate to ease the burden on people who have experienced the tragedy of a marriage breakdown and wish to begin again.
“I am proposing a Bill to reduce the living apart period to two years, thereby allowing people to bring a divorce application at an earlier time. As it stands, the long separation period required under the Constitution frequently leads to couples seeking a judicial separation prior to obtaining a divorce with attendant legal costs and additional stress.”
Additionally, Minister Flanagan said that the constitutional protections around the granting of a divorce would remain in force and only a court can grant a divorce, where there is no prospect of reconciliation and that proper provision exists or will be made for spouses and children.
In February, the Minister for Housing, Planning and Local Government made an order under the Referendum Act 1998 establishing an independent statutory referendum commission and the Chief Justice nominated Justice Tara Burns to act as chair.
General scheme
The text of the General Scheme of the Family Law (Divorce) (Amendment) Bill can be found on the website of the Department of Justice and Equality.
The amendments will:
(a) delete the following paragraph from Article 41.3.2 of the Constitution:
“At the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,”, and
(b) delete the following subsection from Article 41.3 of the Constitution:
“No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and parliament established by this constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved," and to substitute that subsection with the following:
“Provision may be made by law for the recognition under the law of the State of a dissolution of marriage granted under the civil law of another state.”
Foreign Divorces
The Domicile and Recognition of Foreign Divorces Act 1986 governs the recognition of a divorce granted in a country outside of the EU.
That act provides for the recognition of a foreign divorce that is granted in the country where either spouse is domiciled at the time the divorce proceedings are instituted.
EU Council Regulation 2201/2003, also known as the Brussels II bis or the Brussels IIa Regulation, governs the recognition of divorces obtained in another EU Member State.
Habitual residence is the key governing criterion for recognition.
Minister Flanagan has indicated that he intends to legislate to introduce greater consistency in the recognition of foreign divorces and that he will be guided by the expert report of the Law Reform Commission in developing proposals for legislation.
The Law Reform Commission has included in its Fifth Programme of Law Reform an examination of recognition of foreign divorces.
Proper provision
In respect of proper provision, the Law Reform Commission has included in its Fifth Programme of Law Reform an examination of the “proper provision” requirement for divorce.
It has indicated that it will “consider to what extent any further guidance may be provided in order to ensure a consistency in the approach taken to the exercise of this judicial discretion, in particular to assist spouses to reach settlements and resolve disputes more efficiently and at lower financial or cost.”