Thirty-Fifth Amendment of the Constitution (Divorce) Bill 2016
Second Stage, Thursday 6 April 2017
Speech by Minister of State at the Department of Justice and Equality with special responsibility for Equality, Immigration, and Integration, Mr David Stanton, T.D.
On behalf of the Tánaiste and Minister for Justice and Equality, I am pleased to inform the House that the Government will be supporting the Thirty-Fifth Amendment of the Constitution (Divorce) Bill 2016 introduced by Deputy Josepha Madigan.
Deputy Madigan’s Bill proposes to amend Article 41.3.2 of the Constitution to reduce the time period that spouses applying for a divorce must have lived apart from at least 4 years during the previous 5 years to at least 2 years during the previous 3 years.
As is the case with every Bill proposing an amendment to the Constitution, a referendum will be required to allow the people the opportunity to decide on this significant proposed change to the Constitution before this Bill could be signed into law.
As Deputies will be aware, under Article 41.3.2 of the Constitution, as amended by the Fifteenth Amendment, a court may grant a divorce only where specific conditions have been met.
The first condition is that on the date of institution of the divorce proceedings, the spouses have lived apart from one another for a total of at least four years during the previous five years.
The second condition is that there is no reasonable prospect of a reconciliation between the spouses.
The third condition is that proper provision exists or will be made for the spouses and any children of either or both of them.
The final condition is that any further conditions prescribed by law are complied with.
The then Government’s rationale for specifying the basic conditions for divorce in the Constitution was to ensure that there would not be any change to those conditions without reference to the people.
When the Bill that became the Fifteenth Amendment of the Constitution Act 1995 was debated in this House, it was explained that the purpose of the mandatory four-year period of living apart was to ensure that divorce would not be available on an easy or casual basis, in order to address concerns about “quickie divorces” and the development of a “divorce culture” in Ireland.
We must remember that we were moving, at the time, from a situation where the Constitution then provided unequivocally that “No law shall be enacted providing for the grant of a dissolution of marriage” to a situation in which divorce was to become possible in Ireland for the first time, but subject to very specific conditions which were “hardcoded” into the new Article inserted by the Fifteenth Amendment.
The four-year period was intended to ensure that spouses would not enter into divorce lightly and that they would have the necessary time to reflect on the serious step which they are undertaking.
It was also considered that the four-year period would encourage spouses to attempt to reach agreement on the terms of their separation so that the key elements relating to children, finance and property could be settled before an application for a divorce is made to a court. In this way, the court hearing may well be less acrimonious than it otherwise might be.
The four-year period of separation can be cumulated over a five-year period. The reason for this is to allow a couple to make a reasonable attempt at reconciliation in the knowledge that, if it does not work out, they will not have lost their option to apply for divorce.
The Family Law (Divorce) Act 1996, which followed the Fifteenth Amendment, made provision for the exercise by the courts of the jurisdiction conferred by the Constitution to grant decrees of divorce and enabled the courts to make certain preliminary and ancillary orders in or after proceedings for divorce.
Contrary to the fears expressed at the time, as captured for example in the “Hello Divorce, Bye Bye Daddy” posters, it does not appear that a divorce culture has developed in Ireland.
The CSO’s Measuring Ireland’s Progress Report in 2015 indicates that Ireland had the lowest divorce rate in the EU in 2014, at 0.6 divorces per 1,000 population, while the average rate in the EU was 2 per 1,000.
Now that more than 20 years have passed since the introduction of divorce in Ireland, the Government believes that it would be appropriate at this stage to re-examine the provisions of Article 41.3.2 of the Constitution and for that reason very much welcomes this Private Members Bill initiative from Deputy Madigan.
Shortening the living apart period would enable couples whose marriages have broken down to regularise their affairs sooner and reduce the legal costs involved.
Couples would be less likely to need to apply for judicial separation while waiting to become eligible to apply for divorce.
In advance of Committee Stage, the Department of Justice and Equality will examine the wording of the Bill in consultation with the Office of the Attorney General to ascertain whether any technical drafting amendments may be required to the text of the proposed constitutional amendments.
I should mention at this point that the Government is committed to the establishment of a family law court structure that is streamlined, more efficient, and less costly.
The Department of Justice and Equality is working on a General Scheme of a Family Court Bill and will be engaging in further consultation with relevant stakeholders in relation to the operational aspects of a new family court structure. The General Scheme will be published this year following its approval by Government and will be subject to the usual pre-legislative scrutiny process.
The Family Court Bill will aim to streamline family law court processes, clarify jurisdictional issues and provide for a set of guiding principles to help ensure that the Family Court will operate in a user-friendly and efficient manner. The intention is to establish a dedicated Family Court within the existing court structures. The Family Court Bill will also support the proposals in the Mediation Bill 2017 by encouraging greater use of alternative dispute resolution to assist in more timely resolution of family law cases.
The Mediation Bill, which is awaiting Committee Stage in this House, contains proposals for a comprehensive statutory framework to promote the resolution of disputes through mediation as an alternative to court proceedings. This is intended to reduce legal costs, speed up the resolution of disputes and reduce the stress and acrimony which often accompanies court proceedings.
In its 2010 Report on Alternative Dispute Resolution: Mediation and Conciliation, the Law Reform Commission emphasised the potential benefits of mediation in family law proceedings and of mediation information sessions where the benefits and advantages of mediation could be explained before the commencement of court proceedings.
Section 23 of the Mediation Bill provides that the Minister for Justice and Equality may, for the purpose of ensuring the availability of mediation information sessions at a reasonable cost and in suitable locations, prepare and publish a scheme for the delivery of such sessions, or approve a scheme for the delivery of such sessions by another person or body. The Legal Aid Board is already involved in the provision of a free family mediation service, the benefits of which are widely acknowledged, especially in cases in which children are involved.
To return to the Bill, on behalf of the Tánaiste, I wish to inform the House that as a further step, the Government is of the view that it should at this stage be open to proposing the removal of all the conditions for the grant of a divorce set out in Article 41.3.2 of the Constitution. This would not be intended to take away the regulation of divorce and matters associated with it, but it would mean that the conditions for the grant of a divorce would be prescribed by Act of the Oireachtas and not in the Constitution.
This could, for example, facilitate “clean break” divorces where appropriate and in which the possibility of financial and other orders made by a court when granting a divorce being subsequently revisited or varied could be restricted.
The Government has agreed to bring forward amendments to this Bill at Committee Stage to provide for such a constitutional amendment. The Department of Justice and Equality will work with the Office of the Attorney General to formulate an appropriate wording for the amendments. We will also of course have to be careful to hear the further views of those who are experts in this area in formulating these proposals.
It is noted that if this Bill passes Second Stage, it will be referred to the Committee on Justice and Equality for pre-legislative scrutiny in accordance with Standing Order 141. The Tánaiste looks forward to engaging with the Committee in relation to the provisions of this Bill.
In conclusion, I would like to thank Deputy Madigan for bringing forward this Bill and initiating a timely debate on the constitutional requirements for divorce. There will obviously be differing views and experiences to be listened to carefully on this subject.
Ultimately, if the Bill is passed by the Houses, the People will have their say in a referendum. This is manifestly not a subject which any of us would or should take lightly, but it is one on which the Government, in supporting Deputy Madigan’s Bill, believes that it is now appropriate to lead.