Minister Flanagan and Minister Madigan welcome passage of the
Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill 2016 by the Seanad
- The Bill has now been passed by both Houses of the Oireachtas
11 April 2019
The Minister for Justice and Equality, Charlie Flanagan TD, and the Minister for Culture, Heritage and the Gaeltacht, Josepha Madigan TD, have welcomed the passage of the Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill 2016 through the Seanad. The Bill has now been passed by both Houses of the Oireachtas without opposition.
The path is now cleared for a referendum on 24 May, the same day as the Local and European Parliament elections. In the referendum, the people will be asked to agree to remove the provision in the Constitution on the minimum living apart period for spouses seeking a divorce and to modernise the constitutional clause on recognition of foreign divorces. The constitutional protections in respect of proper provision for spouses and children, no reasonable prospect of reconciliation and the role of the Court will remain. Minister Flanagan has consulted with all parties in the Oireachtas and secured cross-party support for a proposal to legislate for a separation period of two out of the three proceeding years. A draft Bill, which the Minister will introduce if the referendum passes, has been published.
Minister Flanagan said: “I am pleased that the Government’s proposal has received such widespread support in the Oireachtas. The cross-party support is testament to the fact that the proposal is a reasonable and fair one. It is fundamentally a proposal to ease the burden on people whose marriages have broken down.
“The current constitutional provisions mean that couples have to be separated for at least four years before they can begin divorce proceedings. That means that, alongside the emotional trauma this engenders, many couples also go through the stress and expense of a separation agreement or judicial separation while waiting to be allowed to begin divorce proceedings. We have a low divorce rate and that is very welcome but where couples wish to divorce, they are being left for too long in a legal limbo.”
Minister Madigan, who originally introduced the Bill before her appointment to Cabinet said: “I am delighted that this Bill, which I introduced from the backbenches, has now been passed by both Houses of the Oireachtas. Since the Bill was passed by the Dáil last week, I have received widespread positive feedback from couples who are anxious for change and for a more humane law governing divorce. Marriage breakdown is a sad reality for some people in this country and it affects people in every county. The changes Minister Flanagan and I are seeking are motivated by compassion and informed by our experience as solicitors dealing with family law cases.”
Note to Editors:
- On 24 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 text of Article 41.3.3 with a provision to allow the Oireachtas to legislate for the recognition under the law of the State of a divorce granted under the civil law of 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. This Bill will be along the lines of the draft General Scheme of the Family Law (Divorce) (Amendment) Bill, which the Minister has published:
- 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 developing proposals for legislation. The Law Reform Commission has included in its Fifth Programme of Law Reform an examination of recognition of foreign divorces.
- The referendum will 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.
- The Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016, a Private Members' Bill, was introduced by Minister (then Deputy) Josepha Madigan to the Dáil. It 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. Following analysis, legal advice and consultation with all sides in the Oireachtas, the Government agreed 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’s amendment to the Bill were approved by the Dáil on 3 April 2019 and by the Seanad today (11 April 2019). The title of the Bill has been changed to the Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill 2016.