The Government recently announced that a referendum to reduce waiting time limits on divorce in Ireland will be held in May 2019.
Former Parliamentary Assistant to the Minister, Oisín Crotty who worked on the formulation of this legislative initiative, gives an overview here of the implications as well in the context of the backstory to divorce in Ireland.
Under the current terms of the constitution at present a person may only apply for a divorce having lived separately and apart from their spouse for four of the previous five years.
The referendum proposal of the government with cross-party support is to remove completely from the constitution the time period of separation required.
The proposal was passed as a Private Members Bill by Fine Gael TD Josepha Madigan with cross-party support.
If passed this would mean that the Dáil and not the constitution would set the separation time period necessary before the grant of a divorce.
If the referendum is passed the government will introduce legislation providing for divorce to be granted after two years of separation.
Long before the arrival of British rule in Ireland when Ireland was ruled by Brehon law, divorce was allowed.
Later under British rule limited divorce became legal also. After Ireland’s independence was once again established, the trend was not to revert to the old Brehon Law of old independent Ireland but to a very restrictive regime.
The Free State Government banned divorce in 1924. The 1937 Constitution (written by the government of Eamon De Valera) banned divorce in the constitution.
It was not until 1986 that the government of Garrett Fitzgerald made a failed attempt to change the constitution to allow divorce which was rejected by 63% of the voters.
A second referendum a decade later did pass but only by a whisker of 0.5 per cent.
Divorce introduced in Ireland in 1996 was necessarily restrictive. The Court could only grant a decree where proper provision had been granted and where there was no prospect of reconciliation and where the parties had lived separate and apart for four years.
However in reality it meant that separating couples had to wait not only four years to initiate a divorce case but in contested cases it could be a year or more before the divorce was granted.
Time Period Change Proposals
The current referendum if passed would only affect the time period to apply for a divorce.
The requirements for proper provision to be made and for the marriage to be irreconcilable would remain. The protection of marriage would remain and the safeguards to ensuring proper provision would remain.
In the 2011 census figures, over 246,924 people in Ireland have undergone marital breakdown. 116,194 of these are separated, 87,770 are divorced and 42,960 have remarried following a divorce or nullity.
By 2016, 283,802 people in Ireland had undergone marital breakdown, 118,178 are separated, 103,895 are divorced and 61,729 had remarried following divorce or nullity.
However despite the warnings that divorce would open the floodgates Ireland has still the lowest ‘crude rate of divorce’ in Europe at 0.6% compared to 2.9% in Denmark, 3.2% in the USA and 1.9% in the UK so marriage remains very popular in Ireland and mostly sustain.
The aim of this divorce referendum is to make divorce law more humane. Forcing separated couples to wait four years to even issue a divorce and one or even two years before a contested case is finished means more costs and anxiety for separating couples.
Many couples cannot wait for a four-year separation period to divorce and issue judicial separation proceedings after one year but those wanting a divorce have to go back to Court a second time to obtain one.
The Supreme Court decision of G V G has provided clear guidelines in relation to a second bite of the cherry in cases where there has been a full and final settlement clause and has set out clear principles to prevent divorce being seen as an opportunity to renegotiate asset division.
Bypassing judicial separation
However, it remains a real fear that it is open to a party to try to use the issuing of divorce proceedings to change the terms of a judicial separation or deed of separation. This possibility causes those affected a great degree of dread and uncertainty and can be a significant deterrent to issuing divorce proceedings.
If the referendum is passed separating couples may decide to wait for two years of separation and seek a divorce thus bypassing a judicial separation.
In cases where it is possible for parties to agree some matters on an interim basis waiting the two years for divorce is an option.
However it could be said that in high conflict cases where the separation is fraught or where there is urgent financial matters to address, two years is too long.
If the referendum is passed there will be more options for separating couples, to issue proceedings for a judicial separation after one year or wait two years and issue a divorce.
For anybody going through a separation now the result of the referendum will have a big bearing on them.
They will have to consider whether to wait for the results before the referendum before deciding whether to issue separation or divorce proceedings. Separating couples might opt for a deed of separation instead of issuing judicial separation proceedings.
As a Family Law practitioner, I see that high conflict legal marital disputes extended over time by mandatory waiting periods increase costs and hostility with the children frequently exposed to the conflict regrettably.
The four-year waiting period does not serve a modern society that cherishes marriage but wants to see separating couples treated humanely.
Separating couples are to be found amongst our families and friends. We need to treat separating couples with compassion, and to minimise where possible the difficulty and expense of protracted litigation.