Keith Walsh

The confirmation by Ministers Flanagan and Madigan that the referendum to reduce the waiting time for divorce is to go ahead at the end of May 2019 finally brings Irish divorce law into the 21st century and marks a very humane approach to this complex area of law.

In order for a divorce to be granted in Ireland currently, the spouses must be living separate and apart for more than four out of the preceding five years before the court proceedings are started. This is a very long time apart and can result in hardship for both parties, as well as preventing them from resolving their differences finally and getting on with their separate lives.

While it is possible for spouses to get legally separated by agreement (no length of time apart needed) or in court (if no fault, then one year apart needed), a legal separation does not permit spouses to remarry and it is possible to revisit the legal separation on divorce. Legal separation is much less final than divorce, which is not satisfactory for separating couples.

Great credit must be paid to both Minister Josepha Madigan, a family lawyer herself, for initiating this change a number of years ago with her private member’s bill, as well as Minister for Justice Charlie Flanagan, who progressed the proposal and refined it following consultation, thought and analysis. His suggestion to remove the time limit from the constitution has further improved the proposed change. The fact that the proposal has received the support of the opposition is a credit to its common sense and the political skill of both ministers.

This proposed change to the waiting time for divorce will assist all those couples currently separating or considering separation. It will have a number of benefits:

1. Couples can achieve a greater degree of finality in resolving their differences much more early on. This will reduce stress and money worries for separating couples and children of separating couples and allow them to move on with their lives rather than being trapped in a legal limbo for four years.
2. As the waiting time for divorce is to be taken out of the constitution, the waiting time can be reduced (or increased) by the Oireachtas if it is felt that this is the right action to take. My own view is that one year should be enough time to spend apart prior to being entitled to divorce. However, two years is a great improvement on four years apart.
3. Couples will save money on legal fees and other costs of separation as instead of the current system where they may get legally separated first and then get divorced, due to the reduction in the waiting time for divorce, it is likely that many couples will now bypass the need to get legally separated, saving time, stress and money, and now simply get divorced.
4. The reduction in the number of legal or judicial separation cases coming before the Courts will free up court resources to deal with other family law cases and will result in savings

Interestingly, it is not just the waiting time for divorce that will be changed. There is a second, less commented-upon change proposed by the government: to replace the current outdated text of article 41.3.3 of the Constitution with a provision to allow the Oireachtas to legislate for the recognition in the State of a divorce obtained in another state.

Currently there are a number of different systems of recognition, depending on where and when the foreign divorce was granted, and the law is difficult to interpret and inconsistent.

One of the practical problems is that the issue of recognition of foreign divorce only arises when people who believe they were validly divorced abroad apply to get married in Ireland. If their prior foreign divorce is not accepted by the Registrar of Births, Deaths and Marriages, then they must apply to the Circuit Court for recognition of their foreign divorce, and it will be only recognised provided it meets the appropriate criteria, which vary depending on the date and place of the foreign divorce.

Minister Flanagan has stated there will be no immediate change to the existing statutory provisions for the recognition of foreign divorces if the referendum is passed, but he will await the recommendations of the Law Reform Commission, who will consider the law.

The Department of Justice announced on 29th January 2019 that the date for the referendum will be announced, but it will fall between 22-26 May 2019.

It cannot come too soon for those waiting for a divorce…

• Keith Walsh is a Dublin solicitor, family lawyer and mediator. His practice was named Irish Law Awards Family Law & Mediation Team of the Year in 2017 and 2018. He is chair of the child and family law committee of the Law Society of Ireland.