Ministers Madigan & Flanagan urge voters to support more compassionate divorce laws
Today (Monday, May 6), Fine Gael launched its campaign for a yes vote in the forthcoming referendum on divorce.
The referendum will take place on Friday, 24th May – the same day as the Local and European Elections. The Director of Elections for the Referendum, Minister Josepha Madigan, and the Minister for Justice and Equality, Charlie Flanagan, addressed the launch, along with Lisa Hughes, a person who has experienced judicial separation and divorce.
Fine Gael’s central campaign message is an appeal to voters to help reduce the emotional and financial distress experienced by couples who currently have to prove to a court that they have been separated for four out of the previous five years before they can apply for a divorce. The long separation period requirement means couples, often apply for a judicial separation or enter a separation agreement, to regularise their affairs before divorcing – doubling their legal costs.
Fine Gael has secured widespread cross-party support on the Government and Opposition benches for the referendum proposals.
Ms Hughes from Dublin, who addressed the launch, said, “I know from personal experience that the current requirement for couples to be separated for four out of the last five years adds considerably to the emotional and financial pain and stress on those involved.
“No-one expects their relationship to break down and their marriage to come to an end but it does happen. In my case, the requirement to secure a judicial separation in advance of the formal divorce added significantly to the costs involved.
“Four years is too long to live in legal and day-to-day limbo if your marriage has broken down irretrievably. For these reasons I’m urging people to vote Yes on Friday 24th.”
Minister Madigan, who as a backbencher introduced a private members’ bill seeking a referendum to reduce the separation period, said: “The current four-year wait period before someone can even apply for a divorce exacts an enormous toll on many people who are left unable to move on with their lives. They are often caught in a long-drawn out court process that only serves to increase acrimony in the long run. Family relationships become further strained, often beyond repair. This surely cannot be acceptable in modern Ireland. The law today traps couples in irretrievable failed relationships. Rather than supporting families, the current lengthy separation period requirement can damage them.”
“When I was elected to the Dáil in 2016, I was determined to rectify this unfair burden on couples already in a very sad and stressful situation. As a family law solicitor, I am conscious that is takes time to make the arrangements necessary for a divorce. In my experience two years provides ample time and changing the law will provide for a more humane approach. The Irish people are very compassionate and I am appealing to them to support the referendum proposal,” Minister Madigan, solicitor and family law specialist, added.
The Minister for Justice and Equality, Charlie Flanagan, who is responsible for the legislation, said:
“Ireland has a very low divorce rate by international standards and that is very positive news. However, sadly in every part of Ireland, people’s marriages do break down irreparably and we want to help couples who find themselves in this sad situation.
“Our proposal involves retaining important constitutional protections: only a court may grant a divorce and the judge must be satisfied there is no reasonable prospect of reconciliation and proper provision has been made for children and dependents.”
Minister Flanagan concluded:
“I want to acknowledge the strong support for the referendum proposal on all sides in the Dáil and Seanad. In our clinics, elected representatives regularly encounter people who have experienced marital breakdown, so there is strong awareness of the difficulties involved, and the added emotional and financial distress caused by the current separation period law.
“I want to also acknowledge the strong support for the referendum proposal from many NGOs, the Law Society and, in particular, the Special Rapporteur on Child Protection, Dr. Geoffrey Shannon.”
Minister Madigan concluded:
“Minister Flanagan and I are appealing to everyone who supports the proposal to campaign as much as possible and to come out and vote on 24th May. At the end of the day while support is very welcome, it’s votes that count.”
The referendum will also ask people to agree to amend the constitutional provision governing the recognition of foreign divorces. The current provision dates from 1937 – at a time when divorce was illegal under the Constitution. The proposal seeks to streamline the proposal so that the Oireachtas can regulate this area of law and address inconsistencies in the law. The Law Reform Commission will conduct an expert analysis of these issues in its next programme of law reform and legislation will follow, if the referendum is passed.
Note to Editors:
A referendum to amend the Constitutional provisions governing divorce will take place on Friday, 24th May.
The people will be asked to agree 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. A draft Heads of Bill has already been published by the Minister for Justice and Equality, the Family Law (Divorce) (Amendment) Bill 2019. See: http://www.justice.ie/en/JELR/Draft_of_General_Scheme_of_Family_Law_(Divorce)_(Amendment)_Bill%20_-_March_2019.pdf/Files/Draft_of_General_Scheme_of_Family_Law_(Divorce)_(Amendment)_Bill%20_-_March_2019.pdf
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 he intends to legislate to introduce greater consistency in the recognition of foreign divorces granted by courts within and outside the EU 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;
- divorce will only be granted where the court is satisfied that there is no reasonable prospect of a reconciliation between the spouses; and
- that 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 referendum proposal originates from the Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016, a Private Member’s Bill introduced by Minister (then Deputy) Josepha Madigan.