Ireland has one of the lowest divorce rates in Europe. Restrictions are enshrined in the Constitution, after a complete ban was removed following a 1995 referendum.
Currently people enter into a separation agreement or obtain a 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.
The law in relation to family law and divorce in Ireland is predominantly contained in the Judicial Separation and Family Law Reform Act 1989; the Family Law Act, 1995; and the Family Law (Divorce) Act 1996. The upcoming referendum in May next month will ask voters on whether to remove or keep the constitutional provision on how long a couple must live apart before they are legally allowed to get a divorce. 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, which would bring Ireland into line with what is the European norm.
Currently, couples must have lived apart for four years out of the preceding five before they can initiate divorce proceedings. The other constitutional protections dealing with divorce would remain in place if the referendum is passed. These include the requirements that there be no prospect of reconciliation and that proper provision exists or will be made for spouses and children in the event of a divorce. As well as this, it will remain the law that only a court can grant a divorce.
Currently people enter into a separation agreement or obtain a 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. In a separation agreement, both parties reach a formal agreement in relation to matters such as maintenance, access to children, the family home, farm and division of the assets, without issuing court proceedings. Where spouses cannot agree the terms of the separation, or where only one spouse seeks a separation, an application for a decree of judicial separation can be made to court. A decree of divorce dissolves a marriage and allows both parties to remarry, but in order to qualify for this at the date of the institution of the proceedings, the spouses currently must have lived apart for four years during the previous five years.
If a married couple split, the only way they can regularise their finances, children, property and ancillary issues is to legally separate, either by deed or by issuing judicial separation proceedings. Under the Judicial Separation and Family Law Act Reform Act (1989), either party can apply for a judicial separation as long as the couple have lived apart for at least one year. This process, however, comes at a cost both emotionally and financially.
It is no secret that high- conflict litigation, particularly over a protracted period of time, only serves to increase hostility between a couple. Their children are often the ones that suffer the most.
If they only had to wait two years for divorce, some might choose to circumvent a legal separation and go straight for a divorce. Two years, in my view, is a reasonable time.
Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.
Disclaimer: While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.