Is time up for Ireland’s restrictive divorce laws?

Posted: 22/05/2019

With all the noise surrounding the EU elections tomorrow, one political campaign close to home has gone largely unnoticed: on Friday 24 May, Irish voters will go the polls again to vote on divorce law reform.

Divorce has only been available in Ireland since 27 February 1997, the result of a referendum in 1995 which was won by a slim margin of 1.7 per cent.  Since then, the shift to a more liberal Ireland has been fast. Same sex marriage has been available since 2015, abortion clinics started opening up earlier this year and, whereas only a small percentage of marriages were secular twenty years ago, around 35 per cent take place outside of a religious setting today.

Today, divorce may be available, but the terms under which it is possible to divorce are some of the most restrictive in the world. As things stand, under the country’s constitution, a person can only apply for divorce after living separately from their spouse for four out of the previous five years.

International research carried out by Penningtons Manches’ family law team last year shows that this is the longest mandatory waiting period of any of the 55 jurisdictions surveyed. Only the Philippines and Vatican City had a more restrictive approach, by not allowing divorce at all.

On Friday, voters will be asked whether to remove the four year waiting period. An alternative waiting period is not on the ballot card for consideration. Instead, if the vote asks for reform, the Irish parliament will legislate on a new time period before divorce is possible. However, the government is expected to introduce a two year waiting period.

There is another element to the vote which will be of interest to those advising international couples. At present, the Irish constitution prevents people who have a divorce that is not recognised under Irish law from getting married again during their ex-spouse’s lifetime. In effect, this means that people who divorce outside of Ireland, cannot get remarried in Ireland.

However, the legal situation regarding foreign divorces in Ireland is complex. Some foreign divorces are recognised under existing law. In addition, different rules apply depending on where and when the divorce was obtained. The election on Friday will ask voters whether they want a change so that divorces granted under the civil law of another country can be recognised.

So what does the current law mean for those living separately from their spouses in Ireland? Living in limbo, waiting for the years to pass, is said to prolong the stress and anxiety associated with relationship breakdown, for the adults and children involved alike. Those caught up in the situation cite an inability to move on emotionally and to sort out their financial affairs. Parallels with the high profile plight of Mrs Owens will be familiar to those in England and Wales which gained press attention last year.

What is even more troubling, is that no one is exempt from this minimum timescale, including those in abusive relationships. A change in the law is supported by domestic abuse and women’s groups such as the National Women’s Council of Ireland.

Meanwhile, Irish family law expert Dr Geoffrey Shannon has recommended further reform of family law including making prenuptial agreements valid and enforceable - prenups are more or less precluded under Irish law - and allowing for “clean break” financial settlements following divorce.

Another report, this time from the Law Reform Commission, is expected on these issues but may not be complete until 2021.  

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