Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

As the Minister of State said, the purpose of this legislation is to give legislative effect to the constitutional amendment voted for by the Irish people in May this year. As the Leas-Cheann Comhairle is aware, the purpose of the amendment was to make a change to Article 41 of the Constitution by removing from it the specific period that required a couple to live apart for four of the previous five years to allow them to get a divorce.

At the outset, it is worth commenting on Article 41 of the Constitution. There is a benefit in having within the Constitution a provision that deals with the family. I am conscious, however, that this article was drafted in 1936 and came into effect in 1937. Notwithstanding that, it has in general withstood the test of time as although the family format envisaged in the Constitution in 1937 is not the format now envisaged, the article is broad enough to encompass the new types of family arrangements that have operated in Ireland, particularly in the past 20 years or so.

Notwithstanding that, there are still parts of Article 41 that are anachronistic and still need to be changed. I particularly refer to Article 41.2, which refers to the role that woman plays "within the home". It is anachronistic and sexist and we need to change it. There were proposals to change it and the preference of the Oireachtas Joint Committee on Justice and Equality, of which I am a member, is to amend the article to recognise the role of carers within the home, irrespective of gender. It is something on which a future Dáil will need to work.

It is worth considering the history to Article 41 and the most controversial part was always the provision precluding divorce. We had a referendum in the 1980s to change that and it was defeated. We then had a referendum in 1995 that only passed by a very small majority. One of the reasons for inserting the provision requiring people to live apart for four of the previous five years was a concern that if it were perceived as being too easy to get a divorce, people would vote against the proposed change. It was a sensible provision to insert for the purpose of getting the amendment passed in 1995 but it was a very cruel and unnecessary provision within Article 41. In effect, it meant people whose marriage had broken down were being compelled to live with each other for four years before they could apply for a divorce. Any fair person would recognise that as cruel. In most cases, unfortunately, when a marital relationship breaks down, no matter the effort put into rehabilitating the marriage by its parties, that rehabilitation is not successful.

When the current Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, put forward the original proposal, the plan was to change the Constitution to expressly provide that people would have to live apart for two of the previous three years. In fairness to the Minister for Justice and Equality, Deputy Charles Flanagan, he subsequently suggested that perhaps we should delete all reference to years within the Constitution and deal with it in a legislative manner. I supported that idea, as did the Fianna Fáil Party, as we thought it a more sensible proposal to have the provision out of the Constitution in order that the Houses of the Oireachtas could determine the appropriate period for people to have lived apart in order for them to be able to seek a divorce. It is important to point out that Article 41, although it has been changed in the way I describe, still contains other requirements within it. For example, there must be no reasonable prospect of a reconciliation between spouses before a divorce is granted and there must be absolute and adequate care and regard for any children of the marriage before divorce is granted. Those fundamental requirements remain.

The Minister of State has outlined the provisions contained in the legislation. People who want a judicial separation in order to get a divorce will need to have lived apart for a year beforehand. For people seeking a divorce, the time required for living apart will be reduced from four years to two years. In respect of civil partnerships, there will also be a requirement to live apart for two years.

It is notable that for divorce, judicial separation or civil partnership acts, the legislation provides that people who are living together can still be regarded as living apart in the marital sense, notwithstanding the fact they are living under the same roof. It is a worthwhile provision. Unfortunately, as a result of the housing crisis in our country, the reality is that very many people whose marriage comes to an end are not in a position to get alternative accommodation or to move out easily and get another house. That is why the provision is important. It indicates that notwithstanding the fact that a couple are living in the same dwelling, they will still be regarded as living apart if they do not "live together as a couple in an intimate and committed relationship". The only caveat is that our legislation now recognises that people can be separated in reality, although they live under the same roof, so I wonder if courts will in future consider when a house is sold by a separated couple that the legislation recognises that people can live separate lives under the same roof. I would be concerned if courts interpreted it in that way. Generally, when there is a separation and ultimately a divorce, either the family home is sold and the proceeds are divided, or alternatively, one party stays in the family home and the other person must get accommodation elsewhere. It is a complicated issue but the provision is worthwhile although I do not know yet how it will be interpreted by the courts.

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