The Government has decided against entering EU negotiations which could have allowed Irish courts powers to grant divorce or legal separation to EU nationals resident in Ireland, based on laws in their own states, write Patsy McGarry and Jamie Smyth
The Tánaiste and Minister for Justice Michael McDowell said the Government had decided not to participate in the debate on the implementation of new EU proposals on divorce and legal separation.
A spokeswoman for the Government said if Ireland were to adopt and implement the EU Commission proposal it would "allow EU nationals resident in Ireland to obtain a divorce in our courts on substantially different and less onerous grounds than provided for in our Constitution, as allowed by the referendum on divorce in 1995, ie four years' separation of the parties".
She continued that "it would also mean that the present constitutional requirement on Irish courts in divorce proceedings to allow divorce only where proper provision is made for the parties involved and for dependent children would not apply".
She pointed out that under EU Treaty provisions in civil law, "Ireland is excluded from the adoption of such measures unless we exercise an option to participate".
Due to concern that the EU proposal would facilitate couples in bypassing provisions introduced in Ireland following the 1995 constitutional amendment, "the Government has decided not to exercise the option to participate in the adoption and implementation of this measure", she said.
Yesterday's decision followed controversy over the implementation of an earlier EU regulation, "Brussels II", which attempted to make provision for EU nationals where "inter-state marriages" had broken down.
Ireland had opted into the first Brussels II regulation in 2000. It made provision for judicial co-operation in such civil law matters and allowed for one side in a marital dispute to seek to have the case heard in another EU state, if they could establish "habitual residence" there.
Brussels II gave rise to anomalies across the EU and, in an effort to bring greater harmony to divorce law among member states, the European Commission published a Green Paper on the matter last year.
This led to the publication of proposals on July 17th last, known as "Rome III", which suggested amending the Brussels II regulation by introducing EU-wide rules in the matter.
The European Commission's legal service is evaluating whether both Ireland and Britain are entitled to "opt out" from a legal instrument that modifies an existing legal instrument to which they have both "opted in" for.
An internal European Commission paper notes that Malta, which does not allow divorce, is opposed to any proposal that would oblige Maltese courts to apply foreign law.