Seanad debates

Tuesday, 9 April 2019

An Bille um an Ochtú Leasú is Tríocha ar an mBunreacht (Scaoileadh ar Phósadh) 2016: An Dara Céim - Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill 2016: Second Stage

 

2:30 pm

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael) | Oireachtas source

The Bill, whose Title was previously the Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016, is a Private Members’ Bill which was introduced by my colleague, the now Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, in 2016. As initiated, the Bill proposed to amend Article 41.3.2° of the Constitution to reduce the time period that spouses applying for a divorce must have lived apart from at least four years during the previous five years to at least two years during the previous three years.

As Senators will be aware, under Article 41.3.2° of the Constitution, as amended by the 15th 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 each other for a total of at least four years during the previous five years. The second condition is that there is no reasonable prospect of 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.

We must remember that in 1995, we were moving from a situation where the Constitution provided clearly that no law could be enacted providing for the grant of a dissolution of marriage to one in which divorce was to become possible for the first time, but subject to very specific conditions which were set out in the new provision inserted by the 15th 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, 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 might already have been settled between the spouses and a form of agreement reached. The four-year period of living apart can be accumulated over a five-year period, the reason for which 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 divorce.

The Family Law (Divorce) Act 1996, which followed the 15th amendment to the Constitution, made provision for the exercise by the courts of the jurisdiction conferred by the Constitution to grant decrees of divorce and enabled the courts to make certain preliminary and ancillary orders in or after proceedings for divorce. It is now 23 years, however, since divorce was introduced in Ireland and the four-year minimum living apart period is now perceived to be unnecessarily restrictive and to hinder couples who have separated from regularising their legal positions and, in many respects, moving on with their lives. Ireland has one of the lowest divorce rates in Europe and that is to be welcomed.Sadly, however, some marriages break down irreconcilably, causing immense sadness and stress for everybody concerned. It is my desire, and the Government wishes to ensure, that the process for obtaining a divorce is fair, dignified and humane and allows for both parties to move forward with their lives within a reasonable timeframe. The Government has taken the opportunity, presented by this Private Member's Bill to re-examine the provisions of Article 41.3.2o of the Constitution and consider the question of the scope of the constitutional amendment that might be proposed. I acknowledge the work of my colleague, the Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, in this regard. Following analysis, legal advice and consultation with all sides in the Oireachtas, the Government considers 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 the complex area that is involved here.

The Government is proposing an amendment to the Constitution to remove the four-year minimum living apart period from Article 41.3.2o. It is also proposing an amendment to replace the text of Article 41.3.3o, which deals with the recognition of foreign divorces with a new provision. The Bill was amended on Report Stage in the Dáil to provide for these amendments. It is the intention of the Government, 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. It is with that in mind that I ask for the co-operation of the House at least in debating the issue. I assure Senators that I would be very happy to debate the issues, but if we are going to have quorums called on the whim of an individual Senator, then it is likely to frustrate the debate. I ask for the co-operation and understanding of all Senators in that regard, although I am not holding my breath.

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