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Bill will reduce minimum living apart period for spouses seeking a divorce to two years during the previous three years
Bill will clarify the meaning of the living apart requirement
Bill will 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 General Scheme of the Family Law Bill 2019, which was approved by Government this week. 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:

At the referendum held on 24 May, the people voted by an overwhelming majority 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 delighted now to be in a position to progress legislation 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.

In addition to reducing the minimum living apart period, the Government will also bring forward the following provisions in the Family Law Bill:

• A provision to enable spouses whose judicial separation application is pending before a court to be granted a divorce if they have been living apart for at least two years during the previous three years on 11 June 2019 (the date of enactment of the Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Act 2019).

• A provision to 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 the phrase “lived apart from one another” as including spouses who are living in the same dwelling but are otherwise living separate lives. 

• A provision to reduce to one year the living apart period of three years that applies to judicial separation applications on the basis of living apart where the respondent does not consent to the decree of judicial separation being granted.

• A provision to ensure, in the event of a no-deal Brexit, that the recognition in Ireland of divorces granted in the UK after EU legislation in this area came into operation on 1 March 2001 will continue to be on the basis of habitual residence, rather than the domicile requirement which applies to divorces granted in non-EU states. This provision will be brought into operation only if and when the UK withdraws from the EU without an agreement.

The Minister added:

At the heart of the Government’s proposals is a desire to ease the burden on people whose marriages have broken down.  A shorter waiting period for divorce is needed in order to take people out of legal limbo and to lessen the human and financial costs of marital breakdown.  I hope to publish the Family Law Bill in the autumn and bring it through the Houses of the Oireachtas as soon as possible.

The text of the General Scheme can be found on the website of the Department of Justice and Equality at http://www.justice.ie/en/JELR/General_Scheme_of_Family_Law_Bill_2019.pdf/Files/General_Scheme_of_Family_Law_Bill_2019.pdf

Notes for Editors 

The Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Act 2019 was signed into law by the President 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 does 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.

The draft General Scheme of the Family Law (Divorce) (Amendment) Bill 2019, which the Minister published in March prior to the referendum, proposed the amendment of the Family Law (Divorce) Act 1996 to reduce the minimum living apart period specified in section 5 of that Act to two years during the previous three years (from four years during the previous five years). 

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 comprehensive legislation in this area. The Law Reform Commission has included an examination of recognition of foreign divorces in its Fifth Programme of Law Reform, which was published on 5 June 2019.