Charles Flanagan (Laois, Fine Gael) | Oireachtas source

On 26 February, 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 of divorce. In accordance with the 1998 Act, the Chief Justice has nominated Ms Justice Tara Burns to act as chairperson to the commission. I believe it is important to have broad consensus in the Oireachtas for any proposal that will be put to the people. Having engaged in consultations with parties and political groupings on options for the scope of the constitutional amendment that might be proposed, I would like to acknowledge the broad cross-party support in the Oireachtas for the proposed changes. In this regard, I acknowledge the constructive approach of the Fianna Fail, Labour and Sinn Féin parties and I would hope that during this debate we might be in a position to allay any fears, queries or observations that some of the Independent grouping might have.

Section 1 makes provision for amendments to Article 41 of the Constitution. Paragraphs (a)and(b)propose the repeal of paragraph i of Article 41.3.2^oof the Constitution. Paragraphs (c) (d)and (e)provide for the consequential renumbering of the remaining paragraphs of Article 41.3.2^o. The effect of the amendment would be that the Constitution would no longer provide for a minimum living apart period for spouses who wish to apply for a divorce but that such a period could be defined in law by 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 a judicial separation prior to obtaining a divorce with attendant legal costs, additional upset, stress and worry.

Should the referendum be passed, it is the intention of the Government to deal with the living apart period by way of ordinary legislation. In this regard 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 years. Senators will be aware that I published the draft general scheme of a Bill to provide for this. This reduction of the time 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 a judicial separation or make a formal separation agreement, while waiting to become eligible to apply for a divorce.

Over time we have learned that complex questions of social policy are best dealt with through detailed legislation in the Oireachtas rather than in our Constitution. The fundamental principles and protections concerning divorce will not change and the Government is not proposing any changes to the other provisions in Article 41.3 of the Constitution. I note that Senator Ruane is smiling and I note her concern in this regard. We will have an opportunity to debate it. I do not disagree with much of what the Senator has said outside the House, but I am keen to try to achieve consensus on the question that might be put to the people with a view to gaining the approval of the people. The requirement that there be no prospect of reconciliation, therefore, will remain in the Constitution. The requirement that proper provision exists or will be made for spouses and children will continue in the constitutional framework but also remain the case that only a court of law will be in a position to grant a divorce. The Law Reform Commission, LRC, has included in its fifth programme of law reform an examination of the proper provision requirement for divorce. It has indicated that it will consider to what extent any further guidance may be provided to ensure a consistency in the approach taken to the exercise of this judicial discretion, in particular to assist spouses to reach settlements and resolve disputes more efficiently and at a lower financial cost.

Turning now to paragraphs(f) and (g) of section 1 and the Schedule to the Bill, what is proposed is an effort to modernise the provision on recognition of foreign divorces in Article 41.3.3^oof the Constitution. The Government is proposing that Article 41.3.3^obe replaced with a more modern readily understandable provision, which clearly provides that the Oireachtas may legislate for the recognition of foreign divorces granted under the civil law of another State. The proposed new text will do no more than to set out in express terms what the courts have found to be the present state of the law; however, to ascertain the present state of the law, it is necessary to examine the case law on the interpretation of Article 41.3.3^o. The constitutional position regarding the recognition of foreign divorces should be clear from a reading of Article 41 of the Constitution. Currently, different rules apply to the recognition of foreign divorces, depending on whether for example they are granted within the European Union or outside the EU. The Domicile and Recognition of Foreign Divorces Act 1986 governs the recognition of a divorce granted in a country outside of the European Union. This 1986 Act provides that a foreign divorce which would be granted after the Act came into operation may only be recognised in Ireland if it was granted in a country where either spouse was domiciled on the date upon which the divorce proceedings were instituted. In this regard, it is important to note that recognition of foreign divorces granted prior to the commencement of the 1986 Act is governed by common law domicile rules, which are now consistent with those in the 1986 Act. The determination of domicile, includes an assessment of the person's intention to remain indefinitely in the foreign jurisdiction.This has proved complex to determine over the years in some instant cases. By contrast, a test of habitual residence, which may be considered less complex and more clear, generally applies across the European Union. EU Council Regulation 2201/03, known as Brussels IIA regulation, governs the recognition of divorces obtained in another EU member state. Habitual residence is the key governing criterion for recognition of such a divorce. In this regard, I advise the House that the Law Reform Commission, LRC, has proposed to examine the legal issues relating to the recognition of foreign divorces as part of its new fifth programme of law reform after the referendum. I intend to legislate to introduce greater consistency in the recognition of foreign divorces and will be guided by the expert report of the LRC in developing proposals for legislation in this area.

The language of Article 41.3.3o which deals with the recognition of foreign divorces is consistent with a time in our history when divorce was expressly prohibited under our Constitution. The referendum in May, if we manage to reach that deadline, is an opportune moment to modernise this provision

. Section 2 provides for the title of the proposed amendment of the Constitution and the Short Title of the Bill. This section was amended on Report Stage in the Dáil in order to change the Short Title of the Bill to the, "the Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill". If passed by the people in the referendum, the amendment will be known as the thirty-eighth amendment of the Constitution. These changes take account of the Thirty-sixth Amendment of the Constitution Act 2018 and the Thirty-seventh Amendment of the Constitution (Repeal of Offensive Publication or Utterance of Blasphemous Material) Act 2018, which were approved by the people in referendums since this Bill was first introduced. The purpose of the change in the Title of the Bill, to use the phrase "dissolution of marriage" rather than "divorce", is to better reflect the wording of Article 41 of the Constitution.

The aim of the amendments proposed in this Bill is to decrease the burdens on people whose marriages have, sadly, broken down. Ultimately, if the Bill is passed by the Houses of the Oireachtas, the people will have their say by way of referendum. I know the Irish people are very compassionate and will show empathy and understanding to those who find themselves in the desperately sad situation of a marriage broken down and with no prospect of reconciliation. I, therefore, commend the Bill to the House.