The Minister for Justice and Equality, Charlie Flanagan TD, has today announced the wording for the amendments to the constitutional provisions on divorce that the Government will propose for the referendum to be held alongside the votes for the European and local elections in May 2019.The proposed amendments will now be considered by the Oireachtas.
Minister Flanagan said:
“In May, the people will be asked to approve an amendment to Article 41.3.2 of the Constitution to remove the requirement for spouses to live apart for a minimum of four years out of the preceding five when applying for a divorce. 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, the Government will bring forward a Bill to amend section 5 of the Family Law (Divorce) Act 1996 to reduce the minimum living apart period to two years during the previous three years.”
It is proposed that 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.
Minister Flanagan continued:
The referendum will also provide an opportunity to modernise the provision on recognition of foreign divorces in Article 41.3.3 of the Constitution. The people will be asked to approve new text to replace this provision with a readily understandable text, which clearly provides 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.
The Minister also published, for the information of the public, the draft General Scheme of a Family Law (Divorce) (Amendment) Bill. If the referendum is passed, the Government will bring forward a Bill, along the lines of this General Scheme, to amend section 5 of the Family Law (Divorce) Act 1996 to reduce the minimum living apart period specified in that Act to 2 years during the previous 3 years (from 4 years during the previous 5 years).
Minister Flanagan said:
“This important referendum will allow the people of Ireland to have their say on an issue that unfortunately affects people across the country.
“The irreconcilable breakdown of a marriage causes immense sadness and stress for all concerned. The Government wishes to ensure that the process for obtaining a divorce is fair, dignified and humane and allows both parties to move forward with their lives within a reasonable timeframe.
“I would like to acknowledge again the work of my colleague, Minister Josepha Madigan, on her Private Members’ Bill, which started the legislative discussion around this issue. I would also like to acknowledge the broad cross-party support in the Oireachtas for the proposed changes.
“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:
“If the referendum is passed, the current provisions containing the requirements that there be no prospect of reconciliation and that proper provision exists or will be made for spouses and children will continue in the Constitution. It will also remain the case that only a Court can grant a divorce.”
As regards the recognition of foreign divorces granted outside the State, Minister Flanagan said:
“The language of Article 41.3.3, which deals with the recognition of foreign divorces, is consistent with a time in our history when divorce was expressly prohibited under the Constitution. The referendum in May is an opportune moment to modernise this provision.”
On 26 February 2019, the Minister for Housing, Planning and Local Government made an order under the Referendum Act 1998 establishing an independent statutory Referendum Commission for the purpose of the forthcoming referendum on divorce. In accordance with the 1998 Act, the Chief Justice nominated Ms Justice Tara Burns to act as Chairperson to the Commission.
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 at: http://www.justice.ie/en/JELR/Draft_of_General_Scheme_of_Family_Law_(Divorce)_(Amendment)_Bill _-_March_2019.pdf/Files/Draft_of_General_Scheme_of_Family_Law_(Divorce)_(Amendment)_Bill _-_March_2019.pdf
Notes for Editors:
The Government proposes, subject to the approval of the Dáil and Seanad, that the amendments of the Constitution to be proposed in the referendum will be as follows:
(a) to delete the following paragraph from Article 41.3.2° of the Constitution:
“i 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) to delete the following subsection from Article 41.3 of the Constitution:
“3° 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:
“3º 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.”
- If the referendum is passed, the Government will bring forward a Bill to amend section 5(1)(a) of the Family Law (Divorce) Act 1996 to reduce the minimum living apart period for spouses to two years during the previous three years. This Bill will be along the lines of the draft General Scheme of the Family Law (Divorce) (Amendment) Bill, which the Minister has published.
- 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.
- The referendum will not propose any changes to the other provisions in Article 41.3.2, namely 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.
- In respect of proper provision, the Law Reform Commission (LRC) 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.”
- The Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016, a Private Members' Bill introduced by Minister (then Deputy) Josepha Madigan, proposed to amend Article 41.3.2(i) of the Constitution to reduce the minimum period that spouses must have lived apart before applying for divorce from four years during the previous five years to two years during the previous three years. The Government supports the principle of the Bill; however, following analysis, legal advice and consultation with all sides in the Oireachtas, it considers that removing the living apart period from the Constitution so that it could be dealt with in ordinary legislation by the Oireachtas would be a more appropriate means to address this complex area of social policy. The Government intends to bring forward amendments to the Bill to propose the amendment on divorce for the May referendum. If passed, the Government will legislate to reduce the living apart period to two out of the proceeding three years. This proposal is also supported by the Opposition. The Bill is currently awaiting Report Stage in the Dáil.