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Opinion: Is it time to fully remove divorce from the Irish constitution?

The government is proposing a referendum to reduce the time period for divorce but other constitutional restrictions will still apply, writes David Kenny.

David Kenny

THE GOVERNMENT’S PROPOSAL to amend the constitutional provisions on divorce is set to come before us in a referendum in May. 

There are several restrictions on divorce in the constitution and this amendment will only deal with the requirement that couples wait four years for a divorce.

Perhaps it would be wise to consider removing divorce from the constitution altogether, as otherwise, we could potentially face a fourth divorce referendum at some stage in the future. 

The divorce referendum in 1995, which removed the constitutional prohibition on divorce, passed by the narrowest of margins: 50.3%were in favour while 49.7% were against. Less than 10,000 votes separated the sides.

A similar referendum had failed to pass 10 years earlier when 63% of people opposed the introduction of divorce.

The 1995 campaign was bitter and divisive, with dramatic and sometimes inflammatory slogans employed by the no campaign, including the classic: Hello Divorce – Bye Bye Daddy.

One prominent ‘No’ campaigner reportedly dubbed her opponents “wife-swapping sodomites”.

It is fair to say that without the constitutional restrictions on divorce, that were put in place the referendum would not have passed. 

Restrictions

There are several restrictions on divorce included in Article 41 of the constitution. 

  • A couple must have lived apart from one another for at least 4 of the past 5 years. 
  • There must be no reasonable prospect of reconciliation between the spouses.
  • The court granting a divorce must ensure there is proper financial provision for spouses and dependent children; as well as any other conditions prescribed by law.

While these restrictions on divorce measures were obviously thought necessary in 1995, they are onerous by European standards, particularly the long time period for living apart.

In recent years, there has been a discussion about whether that period should be reduced.

Lawyers working in the area report that the current system is stressful and costly for those seeking a divorce, many of whom have already undergone costly and difficult judicial separation.

This probably explains, in part, why Ireland’s divorce rate is very low compared to our European peers: many people will stay separated rather than go to the trouble of a divorce.

In 2017, before she was promoted to the cabinet, the minister for culture, Josepha Madigan proposed a constitutional amendment to reduce the waiting period for divorce from 4 years to 2 years.

The government is now going slightly further, proposing to take out the constitutional time period entirely.

This would allow the Oireachtas to change the period as it sees fit, avoiding the need for a future referendum if we wished to change the period again.

That seems sensible but also causes one to wonder – why not just take divorce out of the constitution entirely?

Other constitutional requirements

The remaining constitutional restrictions are not inconsequential.

The requirement for ‘proper provision’ means that a judge will ensure that the wealth and assets of the family are divided in such a way that spouses and children are properly provided for.

In practice, this means that, where possible, assets will be divided so that spouses and children can continue to enjoy the lifestyle they had when during the period of the marriage.

It is always possible to revisit the question of ‘proper provision’ at a later date too. This means that, long after a marriage has ended, a judge may again inquire into the finances of the former spouses and order some new division of assets to ensure continuing ‘proper provision’.

This effectively means that even after a divorce, in Ireland, there can be no ‘clean break’.

It also means that a separation agreement that a couple might make when they split up will not necessarily be honoured in the divorce. The judge granting the divorce will be entitled to make whatever provision she thinks proper.

Pre-nuptial agreements can also never be enforced in Ireland – as a judge would always be entitled to ignore the agreement.

The requirement, that there be no reasonable prospect of reconciliation between the spouses, has never really been enforced by the Irish courts.

Arguably, this is because the time requirement did the job for them – having lived apart for at least four years, the judge could be fairly certain that the spouses were not likely to reconcile.

But if the time requirement is not as extensive, judges might feel that they should inquire into this more actively and rigorously. This could well involve querying why the marriage broke down, as an indicator of whether the couple is likely to reconcile. 

Since Ireland has a system of no-fault divorce (that is you don’t need a specific reason to get a divorce) this is something that Irish couples have largely been able to avoid until now.

Total removal

The government could propose an amendment to remove the regulation of divorce from the bailiwick of the Constitution altogether, regulating questions of ‘proper provision’ and reconciliation, by law.

It seems that the total removal of divorce from the constitution was considered and it is unclear why that idea was rejected.

Perhaps the government believed that that move would make the amendment harder to pass, or that some constitutional restrictions are appropriate.

Perhaps they wanted to avoid an expansive debate on divorce, and so they limited the change to the time issue.

Should the government’s proposed amendment pass in May, the time period for divorce will be reduced, but the other constitutional restrictions will continue to apply, and we will not be able to change them through legislation.

That means that it is possible that at some future stage we will have to examine the constitutional provisions on divorce in a referendum – for the fourth time.

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David Kenny

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