Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I am very pleased to introduce the Family Law Bill 2019 in the House. I acknowledge the expertise and track record of a number of Senators on this issue, especially Senator Bacik, who is here, and I look forward to our discussions on the Bill's provisions. I also note the interest of my colleague, Senator Burke, a long-standing proponent of change in this area.

Senators will recall that the Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Act 2019 was signed into law on 11 June of this year, following its approval by the people in a referendum on 24 May. The Act amended Article 41.3.2° of the Constitution to remove the minimum living apart period for spouses seeking a divorce. It also replaced the text of Article 41.3.3° in respect of foreign divorces. I acknowledge the work of my ministerial colleague, Deputy Madigan, in introducing an initial Private Members' Bill in this area. The effect of the amendment of Article 41.3.2° is that the Constitution no longer provides for a minimum living apart period for spouses who wish to apply for a divorce and that such a period may be defined in law by the Oireachtas.The amendment has given the Oireachtas the flexibility to legislate to ease the burden on people who have experienced the tragedy of marriage breakdown and wish to have an opportunity to begin again. While a living apart period is no longer prescribed in the Constitution, the period of four years during the previous five years specified in section 5(1)(a) of the Family Law (Divorce) Act 1996 continues to have effect until this provision is amended by an Act of the Oireachtas. Prior to the referendum, the Government gave a commitment that if the referendum was passed, a Bill would be introduced to reduce the minimum living apart period in the Family Law (Divorce) Act 1996 to two years during the previous three years. Before bringing the proposals to Cabinet, I engaged with colleagues on all sides of the Oireachtas and I greatly value the widespread, cross-party agreement that two years would be an appropriate period to specify in legislation at this time. I recall the consensus being that achieving consensus was an important factor in the success of the referendum proposal when considered by the people of Ireland in May.

Reducing the living apart period will enable couples whose marriages have broken down with no reasonable prospect of reconciliation to regularise their affairs in a more timely manner. A shorter living apart period will 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. Following the constitutional amendment, I published the general scheme of the Family Law Bill in July. I thank the Joint Committee on Justice and Equality for agreeing that it was not necessary to conduct pre-legislative scrutiny at that level, given the extensive debate that had already taken place in the Houses and among the wider public.

I will briefly outline the main provisions of the Bill. Section 1 provides for the Short Title of the Bill and for its commencement by order to be made by the Minister for Justice and Equality.

Section 2 provides for the amendment of section 2 of the Judicial Separation and Family Law Reform Act 1989. Section 2(1)(a) amends section 2(1) of the Act of 1989 to allow an application for judicial separation to be made after one year living apart, whether or not the respondent spouse consents to the decree of judicial separation being granted. Section 2(1)(e) of the Act of 1989 currently provides for a living apart period of three years where the respondent does not consent to the decree of judicial separation being granted. As it would be undesirable to have a longer living apart period for judicial separation applications than for divorce applications, it is proposed that the living apart period in such cases be reduced to one year. This would be consistent with section 2(1)(d) of the Act of 1989, which provides for a living apart period of one year where the respondent consents to the decree of judicial separation being granted. Section 2(1)(c) will clarify the meaning of the "living apart" requirement for judicial separation applications in section 2(3)(a) of the Act of 1989. I carefully listened to the comments made during the discussion of the Bill to amend the Constitution about issues that can arise where a marriage has broken down where the spouses continue to live in the same house but in fact are living separate lives. I consider that the Oireachtas should provide clarity and legal certainty to the interpretation that has been given by Irish courts to the living apart requirement. The new text will provide that spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship.

Section 3 provides for the amendment of section 5 of the Family Law (Divorce) Act 1996. Subsection (1)(a)(i) will reduce the minimum living apart period specified in section 5(1)(a) of the Act of 1996 from four years during the previous five years to two years during the previous three years. Subsection (1)(a)(ii) will clarify the meaning of the "living apart" requirement for divorce applications by giving certainty to the interpretation that has been given by the Irish courts to that requirement. The new provision will make clear that "spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship". Senators will be aware that the general scheme of the Bill included a provision to enable spouses whose judicial separation application is pending before a court to be granted a divorce if they had been living apart for at least two years during the previous three years. However, as this matter is already adequately provided for by section 39 of the Family Law (Divorce) Act 1996, it is not necessary to make specific provision for it in this Bill.

Section 4 provides for the amendment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Subsection (1) will insert a new subsection (1A) into section 110 of the Act of 2010. The new subsection will clarify the meaning of the "living apart" requirement for applications for dissolution of a civil partnership to ensure consistency with the provisions on judicial separation and divorce in sections 2 and 3 of the Bill. Subsection (2) provides for the amendment of section 172 of the Act of 2010. These amendments are consequential on amendments to the Family Law (Divorce) Act 1996 provided for in section 3 of the Bill.

The background to these provisions is that Part 15 of the 2010 Act established a redress scheme which allows a financially dependent cohabitant to apply to court for certain remedies. Section 172(5) of the 2010 Act defines a "qualified cohabitant" for the purposes of the redress scheme as one of a couple who at the end of the relationship, through death or otherwise, have cohabited for at least five years, or two years where there is a dependent child of the relationship. Section 172(6) makes particular provision for cases in which one or both of the cohabitants is married to another person. That subsection provides that a cohabitant who is married to someone else will not be a qualified cohabitant if he or she has not lived apart from his or her spouse for at least four years during the previous five years. Consideration was given to reducing the living apart period in section 172(6) to two years during the previous three years in order to ensure a measure of consistency with the proposed amendment to section 5 of the Family Law (Divorce) Act 1996. However, a person cannot simultaneously be living with his or her spouse and be a cohabitant as defined in section 172. There could not be a situation in which a married cohabitant would satisfy the cohabitation requirement of section 172(5) without having lived apart from his or her spouse for at least two years. It is proposed to amend section 172(6) of the Act of 2010 so that it will apply only where the cohabitation relationship concerned ends before the coming into operation of section 4(2) of this Bill. Section 4(2)(b) will amend section 172(6) to provide that the term "lived apart" in that subsection shall be construed in accordance with the new section 5(1A) of the Family Law (Divorce) Act 1996 to be inserted by section 3 of the Bill.

I turn to Part 3, which sets out arrangements for the recognition of divorces, legal separations and marriage annulments granted under the law of the United Kingdom. This will arise in the event of the United Kingdom withdrawing from the European Union without a deal. Part 3 will be brought into operation only if and when the United Kingdom leaves the European Union without an agreement that covers this area of law. At present, the recognition in Ireland of a divorce, legal separation or marriage annulment obtained in the United Kingdom is governed by EU Council Regulation No. 2201/2003, known as the Brussels IIA Regulation. Under this, divorces, legal separations and marriage annulments granted in all EU member states except for Denmark are entitled to recognition in other member states if granted in accordance with the jurisdictional criteria specified in the regulation. Habitual residence is the key governing criterion for recognition. The Domicile and Recognition of Foreign Divorces Act 1986 governs the recognition of a divorce granted in a country outside of the European Union. Section 5 of the 1986 Act provides that a foreign divorce may only be recognised in Ireland if it was granted in the country where either spouse was domiciled on the date the divorce proceedings were instituted. The determination of "domicile" includes an assessment of the intention of the person to remain indefinitely in the foreign jurisdiction. This has proved complex to determine in many instances. The Government wishes to ensure that in the event of a no-deal Brexit, the arrangements for recognition in Ireland of divorces granted in the UK will continue to be on the basis of habitual residence rather than the domicile provisions in the Act of 1986.

Section 5 makes general provision for Part 3. Subsection (1) defines certain terms for the purposes of Part 3. "Council Regulation" is defined as meaning EU Council Regulation No. 2201/2003. "Relevant jurisdiction" is defined as meaning England and Wales, Scotland, Northern Ireland or Gibraltar. The provisions of Part 3 will need to apply to Gibraltar because the Council regulation extends to the jurisdiction of Gibraltar. Subsection (2) provides that section 5 of the Domicile and Recognition of Foreign Divorces Act 1986 shall not apply to a divorce to which section 6 or section 7 applies.Section 6 provides that a divorce, legal separation or marriage annulment granted under the law of a jurisdiction of the United Kingdom or Gibraltar that, prior to the coming into operation of the section, was recognised under the Council regulation shall continue to be recognised.

Section 7 provides for recognition of divorces, legal separations or marriage annulments granted under the law of a jurisdiction of the United Kingdom or Gibraltar on or after the coming into operation of the section. Section 7(2) sets out the jurisdictional criteria for recognition of such a divorce, legal separation or marriage annulment. The criteria correspond with the jurisdiction requirements of the Council regulation. Section 7(3) sets out the grounds for refusal of recognition of a divorce, legal separation or marriage annulment granted under the law of a relevant jurisdiction. The grounds of refusal correspond with the grounds of refusal of recognition set out in the Council regulation.

It is my desire, subject to the wishes of Senators, that this Bill will be enacted before 31 October so that in the event of the United Kingdom leaving the European Union on that date without an agreement, Part 3 can be brought into operation with effect from the withdrawal date. I am not sure if this House is sitting next week, that is a matter for the powers that be but, in any event, I hope I will have the co-operation of the House to have the Bill enacted before 31 October so we can ensure we are prepared for a no-deal situation.