Minister Flanagan announces Government approval for a referendum on divorce
Referendum to amend Articles 41.3.2 and 41.3.3 be held in May with the European and Local Elections
29 January 2019
The Government has today approved the holding of a referendum to amend the Constitutional provisions on divorce. The referendum will be held alongside the votes for the European and Local elections in late May 2019.
Speaking after this morning’s Cabinet meeting, Minister Flanagan said:
“I am pleased to have received the support of my Government colleagues to bring forward this important referendum and to allow the people of Ireland to have their say on an issue that unfortunately affects families across the country.
“Ireland has one of the lowest divorce rates in Europe and that is to be welcomed. Sadly, however, some marriages do break down irreconcilably, causing immense sadness and stress for all concerned. The Government wishes to ensure that the process for obtaining a divorce is fair, dignified and humane and allows both parties to move forward with their lives within a reasonable timeframe.
“I would like to acknowledge the work of my colleague, Minister Josepha Madigan, on her Private Members’ Bill, which started the legislative discussion around this issue. Both Minister Madigan and I dealt with marital breakdowns over the course of our legal careers and we are both very conscious of the emotional and financial cost of the current constitutionally mandated separation periods and the need for change.”
In May, the people will be asked to approve an amendment to Article 41.3.2 of the Constitution to remove the minimum living apart period for spouses applying for a divorce. It is the Government’s intention to deal with the living apart period by way of ordinary legislation.
The Constitution currently requires a couple wishing to divorce to have lived apart for four out of the previous five years. If the referendum is passed, the Government will bring forward a Bill to amend section 5(1)(a) of the Family Law (Divorce) Act 1996 to reduce the minimum period to two years during the previous three years.
Minister Flanagan said:
“Over time, we have learned that complex questions of social policy are best dealt with through detailed legislation in the Oireachtas rather than in our Constitution. The fundamental principles and protections concerning divorce will not change. However, removing the time period from the Constitution would give the Oireachtas greater flexibility to legislate to ease the burden on people who have experienced the tragedy of a marriage breakdown and wish to begin again. I am proposing a Bill to reduce the living apart period to two years, thereby allowing people to bring a divorce application at an earlier time. As it stands, the long separation period required under the Constitution frequently leads to couples seeking a judicial separation prior to obtaining a divorce with attendant legal costs and additional stress.”
Additionally, Minister Flanagan said that the constitutional protections around the granting of a divorce would remain in force:
“If the referendum is passed, the current provisions containing the requirements that there be no prospect of reconciliation and that proper provision exists or will be made for spouses and children will continue in the Constitution. It will also remain the case that only a Court can grant a divorce.”
The referendum will also provide an opportunity to replace the outdated provision on recognition of foreign divorces in Article 41.3.3 of the Constitution. The people will be asked to approve new text to replace this Article with a modern, readily understandable provision, which clearly provides that the Oireachtas may legislate for the recognition of foreign divorces obtained outside the State. Minister Flanagan said:
“The language of Article 41.3.3 is unclear and is now considerably out-of-date. It is consistent with a time in our history when divorce was expressly prohibited under the Constitution. The text has not kept pace with the changes people voted for in 1995. The referendum in May is an opportune moment to remedy this anomaly. The Law Reform Commission will examine the legal issues relating to the recognition of foreign divorces as part of its new law reform programme, after the referendum. At the moment different rules apply to the recognition of foreign divorces granted by civil courts within and outside the European Union. I intend to address that inconsistency and I will be guided by the report of the Law Reform Commission in drafting new legislation.”
A Referendum Commission will now be established for the divorce referendum in May.
Minister Flanagan concluded:
“I believe there is widespread support in the Oireachtas for the proposals approved by Government today and I would like to thank Opposition spokespersons for sharing their views with me on these issues in recent weeks.”
Notes for Editors:
- On a date to be determined in the period 23-26 May, the people will be asked to:
- Amend Article 41.3.2 of the Constitution to remove the minimum living apart period for spouses seeking a divorce; and
- Replace the current outdated text of Article 41.3.3 with a provision to allow the Oireachtas to legislate for the recognition in the State of a divorce obtained in another State.
- If the referendum is passed, the Government will bring forward a Bill to amend section 5(1)(a) of the Family Law (Divorce) Act 1996 to reduce the minimum living apart period for spouses to two years during the previous three years.
- There will be no immediate change to the existing statutory provisions for the recognition of foreign divorces if the referendum is passed. The Domicile and Recognition of Foreign Divorces Act 1986, governs the recognition of a divorce granted in a country outside of the EU. That Act provides for the recognition of a foreign divorce that is granted in the country where either spouse is domiciled at the time the divorce proceedings are instituted. EU Council Regulation 2201/2003, also known as the Brussels II bis or the Brussels IIa Regulation, governs the recognition of divorces obtained in another EU Member State. Habitual residence is the key governing criterion for recognition. 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 drafting legislation. The Law Reform Commission has proposed to include in its Fifth Programme of Law Reform an examination of recognition of foreign divorces.
- The referendum does not propose any changes to 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.
- In respect of proper provision, the Law Reform Commission (LRC) has proposed to include in its Fifth Programme of Law Reform an examination of the “proper provision” requirement for divorce. It has indicated that it will “consider to what extent any further guidance may be provided in order to ensure a consistency in the approach taken to the exercise of this judicial discretion, in particular to assist spouses to reach settlements and resolve disputes more efficiently and at lower financial or cost.”
- The draft LRC Programme was laid before the Houses of the Oireachtas in December 2018 and has been referred to the Joint Committee on Justice and Equality for its consideration prior to the Programme being given formal Government approval.
- The Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016, a Private Members' Bill introduced by Minister (then Deputy) Josepha Madigan, proposed to amend Article 41.3.2(i) of the Constitution to reduce the minimum period that spouses must have lived apart before applying for divorce from four years during the previous five years to two years during the previous three years. The Government supports the principle of the Bill; however, following analysis, legal advice and consultation with all sides in the Oireachtas, it considers that removing the living apart period from the Constitution so that it could be dealt with in ordinary legislation by the Oireachtas would be a more appropriate means to address this complex area of social policy. The Government intends to bring forward amendments to the Bill to propose the amendment on divorce for the May referendum. If passed, the Government will legislate to reduce the living apart period to two out of the proceeding three years. This proposal is also supported by the Opposition. The Bill is currently awaiting Report Stage in the Dáil.