- Bill will reduce minimum living apart period for spouses seeking a divorce to two years during the previous three years
- The Bill will clarify the meaning of the living apart requirement
- It will also address any negative impact that a no-deal Brexit might have on recognition of UK divorces
The Minister for Justice and Equality, Charlie Flanagan TD, today published the Family Law Bill 2019. The main purpose of the Bill will be to amend the law in relation to divorce following the referendum on 24 May.
Minister Flanagan said:
This year, the people voted to amend the Constitution to remove from Article 41.3.2 of the Constitution the minimum living apart period for spouses seeking a divorce; and to replace the text of Article 41.3.3 on foreign divorces.
I am now publishing a Bill to reduce the minimum living apart period specified in the Family Law (Divorce) Act 1996 to two years during the previous three years. This proposal has widespread cross-party support in the Oireachtas. The Bill also sets out arrangements for the recognition of divorces, legal separations and marriage annulments granted in the United Kingdom, in the event of a no-deal Brexit.
The Family Law Bill 2019 will make provision for the following:
- 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).
- To make provision 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.
- 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.
The Minister added:
I hope that this Bill will be enacted before 31 October, so that in the event of a no-deal Brexit, the provisions on recognition of UK divorces, legal separations and marriage annulments can be commenced with effect from the date the UK withdraws from the EU. This will ensure a seamless transition from the arrangements under the EU regulation that currently applies in this area to the new recognition arrangements set out in the Bill.
The text of the Bill can be found here https://www.oireachtas.ie/en/bills/bill/2019/78/
Notes for Editors:
Background
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 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.
The Act 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.
On 11 July 2019, Minister Flanagan published the General Scheme of a Family Law Bill to amend the law in relation to divorce and related matters.
Main Provisions of the Bill
Section 2: Amendment of section 2 of Judicial Separation and Family Law Reform Act 1989
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”).
Section 2 amends section 2(1) of the Act of 1989 to allow an application for judicial separation to be made after one year 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: Amendment of section 5 of Family Law (Divorce) Act 1996
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.
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: Amendment of section 110 of Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010
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: Recognition of certain divorces, legal separations and marriage annulments granted in the United Kingdom or Gibraltar before coming into operation of section
The recognition in Ireland of a divorce, legal separation or marriage annulment obtained in the United Kingdom 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 United Kingdom 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: Recognition of certain divorces, legal separations and marriage annulments granted in the United Kingdom or Gibraltar after coming into operation of section
Section 7 provides for recognition of divorces, legal separations or marriage annulments granted under the law of a jurisdiction of the United Kingdom 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.