Invitation to Lawyers For Yes Referendum Campaign
2 May 2019
Lawyers For Yes
Tuesday 7th May 2019 at 5.00 pm
President’s Hall, Law Society, Blackhall Place, Dublin 7
1hour CPD points
On the 24th May 2019, there will be a referendum to change the Constitutional provisions which regulate access to divorce in Ireland.
Most of the provisions of Article 41.3 will remain the same –
- Only a court will be able to grant a divorce,
- There must be no reasonable prospect of a reconciliation between the spouses,
- The court must ensure that proper provision is made for the spouses, any children of either or both of them and any other person prescribed by law
- Any further conditions which may be prescribed by law.
The two proposed changes to the Constitution are:
- that paragraph 2(i) be removed from Article 41.3, i.e. the requirement that the parties must be living separate and apart for a period of at least four years during the previous five years, and
- that paragraph 3 which deals with the recognition of foreign divorces and the recognition of those divorces so that those who have been divorced abroad can remarry in Ireland.
Back in 1995, many family lawyers lobbied and campaigned against inserting specific time limits on the grant of a divorce into the Constitution. They argued that such time limits should be in legislation and not in the Constitution.
Unfortunately, those advices were not listened to and, hence, some 25 years later the government has recognised that it is more appropriate that divorce should be regulated by our Dail and not by referenda.
Our present two tier system of judicial separation causes unnecessary stress, both emotional and financial, to separating couples. Proceedings can only be issued after the parties have been separated for four years, hence, it can take up to five or six years before a court can finally determine that that marriage is over. This is an inordinately long time for spouses to wait in order to achieve the psychological ending of their marital relationship.
The issue of the recognition of foreign divorces and foreign marriages is a complex and difficult legal minefield. Article 41.3.3 provides that a person who is married in the eyes of Irish law and who then gets divorced abroad is not permitted to remarry in Ireland (during the life of the other party) if the first marriage still subsists in the eyes of Irish law. Whilst it does not say that foreign divorces, or foreign divorces followed by foreign remarriages, will never be recognised, it does not squarely address the situation where, under general conflict of law principles, the foreign divorce would be recognised by the courts of most other countries.
If the referendum is passed that clause will be deleted and replaced by one which will enable the Dail to regulate the recognition of foreign divorces and, hopefully, bring clarity to those who have been divorced and, in some cases, have married abroad.
Keith Walsh – firstname.lastname@example.org
Eilis Barry – Eilis.Barry@flac.ie
Peter Ward – email@example.com
Catherine Forde – firstname.lastname@example.org