Divorce and the Constitution


Sir, – On Friday, there will be a referendum to change the constitutional provisions regulating divorce in Ireland.

It is proposed that the requirement that the spouses must be living separate and apart for a period of at least four years during the previous five years be removed from the Constitution. Instead the minimum living apart period will be decided by the Oireachtas. The Government has published a Bill which it intends to introduce if the referendum is successful which will change the living apart period to two years out of the previous three years.

The amendment of article 41.3 of the Constitution which deals with foreign divorces is to be changed to allow the Oireachtas to decide how best to permit foreign divorces to be legally recognised in Irish law. The changes needed to the system of recognition of foreign divorces will be examined by the Law Reform Commission and proposals published.

As lawyers involved, either directly or indirectly, with the area of divorce and recognition of foreign divorce, we are calling for a Yes vote in the referendum.

Four years is too long for divorcing couples to have to wait before they start the process of divorce.

Even after the process of divorce is started, it can take another year or more to complete the divorce. Hence, some couples may have to wait up to five or six years, after they have separated, before they can be divorced.

Currently we have a two-tier system arising from marital breakdown. People who wish to regularise their financial affairs and access/custody of their children following marital breakdown but who are not living apart for four years must enter into a legal separation (by agreement) or a judicial separation (decided by a judge). In order to remarry they must subsequently get divorced. The current system involves a duplication of time, emotional stress and trauma, potentially inviting a duplication of contentious legal battles and a duplication of the legal and financial costs.

The current system of recognition of foreign divorces in Ireland is byzantine in its complexity and needs to be simplified. The proposed change to the Constitution will permit the Oireachtas to simplify the recognition of foreign divorces.

While there are a variety of other reforms required in the family law system of justice and more resources needed, this referendum proposal is a great start.

It is important to note that this referendum will not change the substantive constitutional provision in relation to divorce, namely the requirements that a court must be satisfied that proper provision has been made for both spouses and their children, and that there is no reasonable prospect of reconciliation before a divorce can be granted.

As lawyers advising on separation and divorce on a daily basis we can see that for separated couples, and their children, the proposed changes to the Constitution will make a real difference to their lives by reducing conflict and the emotional and financial costs of separation and divorce.

We ask you to vote Yes on Friday. – Yours, etc,



Chief Executive,

FLAC (Free Legal

Advice Centres);






Chairman, FLAC;

On behalf of

Lawyers for Yes,

Dublin 1.