Un Tying The Knot

Setting The Date

The much-anticipated date for a referendum to be held in this Jurisdiction to amend Article 41 of the Constitution of Ireland in an effort to relax the waiting time for those wishing to apply for a divorce has been set for May 2019.

Current Situation:

Divorce was introduced in the Republic of Ireland following a referendum held on the 24th of November 1995.  It was signed into law on the 17th of June 1996 and is governed by the Family Law (Divorce) Act 1996. In order to qualify for a Divorce, the court must be satisfied that:

• At the date of institution of the proceedings, the parties must have lived separate and apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
• There is no reasonable no prospect of reconciliation,
• Such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent family members.

Under the current regime, where a couple separate, their situation regarding custody and access to their children, property adjustment orders, pension orders and financial compensation orders can only be regularised by a judicial separation or separation agreement.

Under the Judicial Separation and Family Law Reform Act (1989), either party can apply for a separation provided they have lived separate and apart for at least one year, or sooner if the Applicant can recite grounds for their separation based on their spouse’s unreasonable behaviour.

This is a two-tiered approach and couples will have to embark on this road again when they qualify under the constitution to apply for a divorce. This process comes at an unnecessary emotional and financial cost. It can lead to high conflict litigation thus increasing the waiting period for court hearings. It also fails to provide finality for couples who risk a settlement on separation being reopened on Divorce.

Proposed Change:

Voters will be asked to remove the current clause and leave it to the legislators to set a time frame, the time period envisaged is two years.

The position will still remain that only a court can grant a Divorce.

The proposed change is to be welcomed by couples in marital disharmony and family law practitioners. Having a reduced waiting period to apply for a divorce may seek to encourage couples to bypass the separation route.  This will encourage settlements and will have a large impact on the court system reducing the volume of cases.