Referendum to be held in May to remove divorce restrictions

The Government has agreed to hold a referendum this May to ease divorce restrictions and remove the minimum waiting period from the Constitution.

Minister for Justice Charlie Flanagan proposed that the current four-year time limit an estranged couple must spend apart before they can divorce would be set by legislators and reduced to two years.

“The Constitution currently requires a couple wishing to divorce to have lived apart for four out of the previous five years. If the referendum is passed the Government will bring forward a Bill to amend...the Family Law Divorce Act 1996 to reduce the minimum period to two years during the previous three years,” Mr Flanagan said.

Minister for Culture Josepha Madigan said she hoped family lawyers and those who have experienced divorce would come forward and tell their stories in the coming months.

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“I think for future generations this is a really important day, and I think this will help a lot of people in Ireland who, for various different reasons, suffer marital breakdown, and I think we have to show compassion and some humanity to them,” said the Minister, who practised as a family law solicitor before being elected.

She said: “Four years is a difficult, unconscionable time for people when they are going through a separation. They are stuck in a limbo land; it often results in increasing the hostility between couples, and it obviously has an adverse effect on their children.

“It also increases the costs that are involved by having two sets of proceedings.”

Legal costs

Mr Flanagan said the law as it currently stood “leads to couples seeking a judicial separation prior to obtaining a divorce, with attendant legal costs and additional stress”.

He said it would remain the case that only a court could grant a divorce. The Government would now move to establish a referendum commission.

“I believe there is widespread support in the Oireachtas for proposals approved today,” Mr Flanagan said.

While the Cabinet on Tuesday agreed to hold the referendum, sources said Minister for Agriculture Michael Creed and Minister for Rural Affairs Michael Ring queried the need for it, given there was no great political or public demand. Minister of State for Higher Education Mary Mitchell O’Connor warned of potential unintended consequences of major change.

The referendum will be held alongside votes for the European and local elections in late May 2019.

However, a proposed referendum to remove the reference to a woman’s place in the home from the Constitution will not now happen until as late as next year.

“I can say now that this referendum will not take place in May. There was a report by the joint Oireachtas Committee on Justice which made a valuable contribution towards the process. Further consultations are ongoing with interested parties. I would expect that this referendum may well be held if not by the end of this year perhaps early next year.”

The committee recommended two options in its report – amending the Constitution to make the clause non-gender specific or sending the matter to the Citizens’ Assembly for further consideration.

Constitution

Ireland has one of the lowest divorce rates in Europe. Restrictions are enshrined in the Constitution, inserted in place of a blanket ban which was removed following a 1995 referendum.

Currently people apply for an out-of-court legal or judicial separation when the marriage breaks down, and then have to return to the courts again for a divorce once they have proved they have lived apart for four of the previous five years. It is proposed that this waiting period will drop to two out of three years if the referendum is passed.