Charles Flanagan (Laois, Fine Gael) | Oireachtas source

Tairgim leasú a 1:

I leathanach 5, línte 12 go 15 a scriosadh agus an méid seo a leanas a chur ina n-ionad:"(a) aisghairfear mír i d’fho-alt 2° d’alt 3 den téacs Gaeilge;

(b) aisghairfear mír i d’fho-alt 2° d’alt 3 den téacs Sacs-Bhéarla;

(c) déanfar mír ii d’fho-alt 2° d’alt 3 den dá théacs a uimhriú mar mhír i;

(d) déanfar mír iii d’fho-alt 2° d’alt 3 den dá théacs a uimhriú mar mhír ii;

(e) déanfar mír iv d’fho-alt 2° d’alt 3 den dá théacs a uimhriú mar mhír iii;

(f) cuirfear an fo-alt a bhfuil an téacs de leagtha amach i gCuid 1 den Sceideal in ionad fho-alt 3° d’alt 3 den téacs Gaeilge;

(g) cuirfear an fo-alt a bhfuil an téacs de leagtha amach i gCuid 2 den Sceideal in ionad fho-alt 3° d’alt 3 den téacs Sacs-Bhéarla.".

I move amendment No. 1:

In page 4, to delete lines 11 to 14 and substitute the following:"(a) paragraph i of subsection 2° of section 3 of the Irish text shall be repealed;

(b) paragraph i of subsection 2° of section 3 of the English text shall be repealed;

(c) paragraph ii of subsection 2° of section 3 of both texts shall be numbered as paragraph i;

(d) paragraph iii of subsection 2° of section 3 of both texts shall be numbered as paragraph ii;

(e) paragraph iv of subsection 2° of section 3 of both texts shall be numbered as paragraph iii;

(f) the subsection, the text of which is set out in Part 1 of the Schedule, shall be substituted for subsection 3° of section 3 of the Irish text;

(g) the subsection, the text of which is set out in Part 2 of the Schedule, shall be substituted for subsection 3° of section 3 of the English text.".

As Deputies are aware, under Article 41.3.2° of the Constitution, as amended by the fifteenth amendment in 1995, a court may grant a divorce only where specific conditions have been met. The first condition is that on the date of institution of the divorce proceedings, the spouses have lived apart from one another for a total of at least four years during the previous five years. The second condition is that there is no reasonable prospect of a reconciliation between the spouses. The third condition is that proper provision exists or will be made for the spouses and any children of either or both of them. The final condition is that any further conditions prescribed by law are complied with.

I remind the House that in 1995 we were moving from a position where the Constitution provided clearly that "No law shall be enacted providing for the grant of a dissolution of marriage" to one in which divorce was to become possible in Ireland for the first time but subject to very specific conditions, which were set out in the new provision inserted by the fifteenth amendment. The purpose of the mandatory period of living apart was to ensure that divorce would not be available on an easy or casual basis, in order to address concerns about what were described as quickie divorces and the development of what was described as a divorce culture in Ireland.

The four-year period was intended to ensure that spouses would not enter into divorce lightly and would have the necessary time to reflect on the serious step they were undertaking. It was also considered that it would encourage spouses to attempt to reach agreement on the terms of their separation in a way that would ensure that, when the divorce application came before a court, many of the key elements relating to children, finance and property may already have been settled between the spouses and a form of agreement reached.

The four-year period of living apart can be cumulated over a five-year period. The reason for this is to allow a couple to make a reasonable attempt at reconciliation in the knowledge that, if it does not work out, they will not have lost their option to make an application for a divorce. However, it is now 23 years since divorce was introduced in Ireland and the four-year minimum living apart period is now perceived to be unnecessarily restrictive and as hindering couples who have separated from regularising their legal positions and, in many respects, moving on with their lives.

The Government has taken the opportunity presented by this Private Members' Bill, introduced by my colleague, the Minister for Culture, Heritage and the Gaeltacht, Deputy Josepha Madigan, to re-examine the provisions of Article 41.3.2° of the Constitution and consider the question of the scope of the constitutional amendment that might be proposed. I acknowledge the work of the Minister in this regard.

Without unnecessarily delaying proceedings on the amendment, it is important to point out that Ireland has one of the lowest divorce rates in Europe and I welcome this. Sadly, however, some marriages break down irreconcilably, causing immense grief, sadness and stress for everybody 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 propose an amendment to the Constitution to remove the four-year minimum living apart period from Article 41.3.2°. I also propose an amendment to replace the text of Article 41.3.3° in the matter of the recognition of foreign divorces with a new provision.

Over time, we have learned that very complex questions of social policy are best dealt with through detailed legislation in the Oireachtas, with the Dáil and Seanad reaching agreement in committee and plenary or making proposed changes in accordance with the rules of both Houses, rather than in our Constitution. The fundamental principles and protections concerning divorce will not change and the Government does not propose any change to the other provisions of Article 41.3.2° of the Constitution. The requirements that there be no prospect of reconciliation will remain in the Constitution. The requirement that proper provision exists or will be made for spouses and children will continue within the constitutional framework. It will also remain the case that only a court of law can grant a divorce.

The Government intends, subject to the passage of the Bill by the Dáil and Seanad, to hold a referendum on divorce alongside the votes for the European and local elections on Friday, 24 May 2019. On 26 February 2019, my colleague, the Minister for Housing, Planning and Local Government, Deputy Eoghan Murphy, made an order under the Referendum Act 1998 to establish an independent statutory referendum commission for the purpose of the referendum on divorce. In accordance with the 1998 Act, the Chief Justice nominated Ms Justice Tara Burns to act as chairperson to the commission.

It is important to have broad consensus in the Oireachtas for any proposal that will be put to the people. Deputies will recall that I have engaged in consultations with parties and political groupings on options for the scope of the constitutional amendment that might be proposed. I acknowledge the broad cross-party support in the Oireachtas for the proposed changes.

Turning briefly to the proposed amendment to Article 41.3.2°, the effect of the amendment would be that the Constitution would no longer provide for a minimum living apart period, but that such a period could be defined in law by the Houses of the Oireachtas. Removing the time period from the Constitution would give the Oireachtas a greater element of flexibility to legislate to ease the burden on people who have experienced the tragedy of a marriage breakdown and wish to begin again.

As it stands, the long period of living apart required under the Constitution frequently leads to couples seeking an order for judicial separation prior to obtaining a divorce, with attendant legal costs and additional upset, stress and worry. If the referendum is passed, it is the Government’s intention to deal with the living-apart period by way of ordinary legislation to be introduced in the House. 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 specified in that Act to two years during the previous three. Deputies will be aware that I have published the draft general scheme of a Bill to provide for this.

It is my strong contention that this reduction would enable couples whose marriages have broken down with no reasonable prospect of reconciliation to regularise their affairs sooner. A shorter living-apart period would also have the potential to reduce the legal costs involved, as couples would be less likely to need to apply for judicial separation or make a formal separation agreement while waiting to become eligible to apply for an order of divorce through the courts.

I know that Irish people are very compassionate and will show empathy and understanding to those who find themselves in the desperately sad situations where marriages break down with no prospect of reconciliation. The aim of the proposed amendments is to decrease the burden on people whose marriages have, sadly, broken down.

I apologise to the Leas-Cheann Comhairle if I have transgressed any regulation, but it has been some time since the House debated this issue. We are dealing with Report Stage of a Bill which would introduce what I will describe as a fundamental change and I am very keen to hear the views of Deputies with a view towards achieving consensus.

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