Minister wants to rush divorce law ahead of Brexit

The Family Law Bill 2019, which will amend the law on divorce, has been published.

Justice minister Charlie Flanagan said that he hoped the bill would be enacted before 31 October so that it can be commenced with effect from the day that Britain leaves the EU.

Two years

The bill reduces the minimum living-apart period specified in the Family Law Divorce Act 1996 to two years during the previous three years.

It also sets out arrangements for the recognition of divorces in Britain, legal separations, and marriage annulments in the event of a no-deal Brexit.

The following provisions are included:

To amend 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 (from four years during the previous five years),

Annulments

To make provision for the recognition of divorces, legal separations and marriage annulments granted under UK law, in the event that the UK withdraws from the EU without an agreement that applies to this area of law,

To give statutory certainty to the interpretation by the Irish courts of the requirement for spouses to have lived apart for specified periods in order to be eligible to apply for judicial separation or divorce.

A corresponding provision will deal with dissolution of civil partnerships,

To reduce 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,

To make consequential amendments to the provisions on cohabitants in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

Amendments 

The Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Act 2019 was signed into law on 11 June. The act provides for the following amendments to the Constitution, which were approved by the people in a referendum on 24 May:

Removing from Article 41.3.2 of the Constitution the minimum living-apart period for spouses seeking a divorce, and

Replacing the text of Article 41.3.3 on foreign divorces.

Provisions

The act did not change the other provisions in Article 41.3.2, that: 

Only a court may grant a divorce,

There is no reasonable prospect of a reconciliation between the spouses, and proper provision exists or will be made for the spouses, any children of either or both of them, and any other person prescribed by law.

Section 2 provides for the amendment of section 2 (application for a decree of judicial separation) of the Judicial Separation and Family Law Reform Act 1989 (‘act of 1989’).

Judicial separation

Section 2 amends section 2(1) of the act of 1989 to allow an application for judicial separation to be made after one year of living apart, whether or not the respondent spouse consents to the decree of judicial separation being granted. 

Section 2 will also clarify the meaning of the ‘living apart’ requirement for judicial separation applications in the act of 1989, by giving certainty to the interpretation that has been given by the Irish courts to that requirement.

The new text will provide that spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship.

Section 3

Section 3 provides for the amendment of section 5 of the Family Law (Divorce) Act 1996 (‘act of 1996’).

Section 3 will reduce the minimum living-apart period specified in section 5(1)(a) of the act of 1996, from four years during the previous five years, to two years during the previous three years.

'Living apart'

Section 3 will also clarify the meaning of the ‘living apart’ requirement for divorce applications, by giving certainty to the interpretation that has been given by the Irish courts to that requirement.

The new text will provide that spouses who live in the same dwelling as one another shall be considered as living apart from one another, if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship.

Section 4

Section 4 provides for the amendment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (‘act of 2010’).

Section 4 will clarify the meaning of the ‘living apart’ requirement for applications for dissolution of a civil partnership to ensure consistency with the provisions on judicial separation and divorce in sections 2 and 3 of the bill.

Section 4 also provides for the amendment of section 172 (cohabitant and qualified cohabitant) of the act of 2010. Section 172 (6) makes particular provision for cases where one or both of the cohabitants is, or was, during the relationship concerned, married to another person.

The amendments to section 172 (6) are consequential on the amendments to section 5 of the Family Law (Divorce) Act 1996 in section 3 of the bill. 

Section 6

Section 6: Recognition of certain divorces, legal separations and marriage annulments granted in the UK or Gibraltar before the section comes into operation.

The recognition in Ireland of a divorce, legal separation or marriage annulment obtained in the UK is currently governed by EU Council Regulation 2201/2003 concerning jurisdiction, and the recognition and enforcement of judgments in matrimonial matters, and the matters of parental responsibility (also known as the Brussels IIa Regulation). 

Section 6 provides that a divorce, legal separation or marriage annulment granted under the law of a jurisdiction of the UK or Gibraltar that, prior to the coming into operation of the section, was recognised under the Brussels IIa Regulation shall continue to be recognised.

Section 7

Section 7: Recognition of certain divorces, legal separations and marriage annulments granted in the UK or Gibraltar, after the section comes into operation.

Section 7 provides for recognition of divorces, legal separations or marriage annulments granted under the law of a jurisdiction of the UK or Gibraltar, on or after the coming into operation of the section.

The section sets out the jurisdictional criteria for recognition of a divorce, legal separation or marriage annulment granted under the law of a relevant jurisdiction, and sets out the grounds for refusal of recognition of such a divorce, legal separation or marriage annulment.