Josepha Madigan: Legislation should help those who have separated move on in a humane way



Josepha Madigan
Josepha Madigan

Minister Josepha Madigan, a qualified solicitor and family mediator, writes on the case for divorce reform in the State.

The courtroom is a barbaric venue in which to pick over the carcass of a failed marriage, said Fiona Shackleton, Paul McCartney’s divorce lawyer.

This is an insightful remark from someone at the coalface of marital breakdown. For the best part of two decades I practised as a solicitor in family law, specialising in the area of separation and divorce. I also acted as a mediator in many cases in an effort to assist couples to avoid a court-imposed outcome and having to endure protracted matrimonial litigation.

In marriage, we promise ourselves to one another “‘til death do us part”. This solemn vow reflects an ideal; the steady love and companionship that many hope to enjoy for the duration of our time on earth. Sadly, for many this is not reflected in reality. Many marriages break down and have always done so. We need to treat these families with compassion and respect.

I have witnessed first-hand the pain and trauma that the time-limit, which is enshrined in our Constitution under Article 42.1.3, inflicts on families.

The current four-year wait before someone can even apply for a divorce exacts an enormous toll on many people. They are often caught in a long drawn-out court process that only serves to increase acrimony. Family relationships become further strained, often beyond repair. When I was elected to Dáil Éireann I was determined to rectify this.

I introduced a Private Members’ Bill to reduce the wait period for divorce from four years out of the preceding five to two years out of the preceding three. Whether we do this, or remove the timelimit entirely from our Constitution in order to allow the Oireachtas to legislate, which would be my preference, it is important we take action now. But it is equally important we reach a consensus on which approach is best.

Minister Charlie Flanagan and I have been listening to all sides. It is important care is taken to explain the nature of the changes proposed and why they are needed before a final proposal is brought to Cabinet and then voted on in a referendum in May 2019.

It is 32 years since then-Taoiseach Garret FitzGerald first attempted to tackle the issue of divorce by way of referendum, but it was unsuccessful. It would be almost another decade before former Taoiseach John Bruton brought a referendum on divorce to the people. It was finally passed by the thinnest of margins. The price to win over a wary electorate was the mandating of a four-year waiting period in the Constitution. Yes the people said we could have divorce, but they weren’t making it easy.

Our current law can be said to make divorce as difficult as possible. The consequence of this is not, as some claim, the protection of the family unit; rather it leads to the damaging of families. Our tendency to put restrictions on social policy in the Constitution is also problematic. These restrictions reflect the values of our society at a fixed point in time on an issue where public opinion is ever evolving.

Ireland’s waiting time for divorce is one of the longest in the world. Two years is a more reasonable time, allowing couples time to obtain legal advice on property, pensions access, maintenance and other ancillary reliefs. Irish legislation should reflect the reality that some marriages break down.

It should be designed to assist those who have separated to move on in a more humane way. It should be the responsibility of the Oireachtas to deal with the realities of marital breakdown. Our system is too lengthy, too restrictive and ultimately unfair, both financially and emotionally.

This issue is not a fringe one. The 2016 Census showed 283,802 people in Ireland are divorced, separated, or remarried. Over 103,000 people have gone through a divorce since 1997. Divorce is never something that is considered lightly, or undergone easily.

That will not change with this referendum. Some 118,000 individuals described themselves as separated in the 2016 Census. How is it fair to inflict a draconian 48-month time-period on these thousands of people?

Our country in 2018 is a very different place to the Ireland that enshrined a four-year wait period for divorce in Bunreacht na hÉireann in 1997.

It is an unrecognisable country to the one that banned divorce outright in 1937.

We have become a more mature and open society, less willing to judge the life choices of others. The reduction of the time-limit from four years to two does not undermine the institution of marriage, it simply allows us treat those whose marriages break down with the compassion and respect they deserve.

In May, my husband and I will celebrate our 17th wedding anniversary. But for myriad personal reasons, not every marriage stays the course. I believe the time-limit for divorce should be reduced from four years to two in recognition of that and in solidarity with our separated friends and family members.

  • This article first appeared in the Irish Independent.