merrion street

• Act follows historic Divorce Referendum
• Act reduces the minimum living apart period for spouses seeking a divorce to two of previous three years
• Act clarifies the meaning of the living apart requirement
• Part 3 of the Act addresses potential negative impact of no-deal Brexit

Minister for Justice and Equality, Charlie Flanagan has today announced that he has signed a commencement order to bring Parts 1 and 2 of the Family Law Act 2019 into effect from 1^st December 2019.

The Family Law Act 2019 was enacted following the passing of the divorce referendum on May 24^th to amend articles 41.3.2 and 41.3.3 of the Constitution to allow for the reduction of the minimum period that couples seeking a divorce are required to live apart.  The referendum was carried by 82% of those who voted.

Since the Bill became law on 25^th October 2019, the Department of Justice and Equality has been working with the Courts Service to ensure the relevant provisions of the Act can become operational on 1^st December.

Minister Flanagan said:

I am very pleased to announce I have signed the commencement order of key elements of the Family Law Act 2019. From 1^st December, 2019, the financial and emotional burden caused by the previous living apart requirements will be reduced. This will ensure that the process for obtaining a divorce is fair, dignified and humane.  This commencement of the Act now allows both parties to move forward with their lives within a reasonable timeframe, while ensuring core protections for marriage continue to remain in our Constitution.

The provisions of the Family Law Act 2019 which are being commenced from 1 December are:

Part 1 of the Family Law Act 2019 which is a commencement provision.

Part 2 of the Family Law Act 2019 which makes a number of amendments to existing laws in relation to divorce in Ireland.  In particular:

• It amends 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).

• It gives 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.

The Minister is not commencing Part 3 of the Family Law Act 2019 at this time. Part 3 provides for the recognition of divorces, legal separations and marriage annulments granted under the law of the United Kingdom, in the event that the UK withdraws from the European Union without an agreement that applies to this area of law.  This Part will be brought into operation only if and when the United Kingdom withdraws from the European Union without such an agreement.

Minister Flanagan concluded:

In May the people of Ireland voted for reform. The commencement of the Family Law Act delivers that reform, which I expect to make an important and meaningful difference to people’s lives.   I would like to once again thank Minister Madigan for bringing forward her Private Member’s Bill on Divorce, as it served as a starting point for the debate which led to these major changes.  I would also like to acknowledge the support provided by all parties in progressing this Bill through the Oireachtas.

Notes for Editors:

1. 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 that were approved by the people in a referendum on 24^th 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.

2. The Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Act 2019 did not change 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.

3. The Family Law Bill 2019 to amend the law in relation to divorce and related matters was published on 10 October 2019. The Bill completed all stages in the Dáil on 16 October and completed all stages in the Seanad on 23 October 2019.  The Family Law Act 2019 was signed into law by the President on 25 October 2019.

4. Parts 1 and 2 of the Family Law Act 2019 are coming into operation on 1 December 2019.  Part 3 which provides for the recognition of divorces, legal separations and marriage annulments granted under the law of the United Kingdom, in the event that the UK withdraws from the European Union without an agreement that applies to this area of law, will be brought into operation only if and when the United Kingdom withdraws from the European Union without such an agreement.

The main changes being introduced by the Family Law Act 2019

• Application for judicial separation can be made after one year living apart, whether or not the respondent spouse consents to the decree of judicial separation being granted.
• Reduction in the minimum living apart period for divorce applications from four years during the previous five years to two years during the previous three years.
• Clarification of the meaning of the “living apart” requirement for judicial separation and divorce applications by giving certainty to the interpretation that has been given by the Irish courts to that requirement.  The Bill provides 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.
• Clarification of 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.
• Amendment of provisions on cohabitants in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
• Part 3 of the Act provides for the recognition of divorces, legal separations and marriage annulments granted under the law of the United Kingdom, in the event that the UK withdraws from the European Union without an agreement that applies to this area of law.  Part 3 will be brought into operation only if and when the United Kingdom withdraws from the European Union without such an agreement.