A French journalist wanted me to tell her about our "divorce story" and whether opinion was divided in the forthcoming referendum. On arrival here she must have been surprised by the absence of debate and posters. So what is the story? The story began with article 41.3.2 of the Constitution, which stated "No law shall be enacted providing for the grant of a dissolution of marriage." In 1986, a referendum was held to remove it but after a very intensive anti-divorce campaign, 63 per cent of the public voted against any change. In 1989, Alan Shatter, an expert in family law, introduced the Judicial Separation and Family Law Reform Act, which provided the basis for legal separation. This would release them from their obligation to cohabit. If the couples could not agree terms between then either party could apply to the courts for a judicial separation. But it did not give them a right to remarry. It was in effect "divorce Irish style".
Marital separation
By 1995, there was a growing awareness of marital separation and the lack of a right to divorce so the then government proposed another referendum. It sought to amend article 41.3.2 of the Constitution by removing :
2º No law shall be enacted providing for the grant of a dissolution of marriage.
and substituting that subsection with the following:
2º A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that –
i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
ii. there is no reasonable prospect of a reconciliation between the spouses,
iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and
iv. any further conditions prescribed by law are complied with.
In 1995, this second referendum on divorce was passed 51 per cent to 49 per cent. While anti-divorce campaigners proclaimed that the amendment would open the floodgates and weaken marriage, there is little evidence for this. A high proportion of people still marry but the average age of marriage has risen steadily to age 36 for men and 34 for women in 2018.
Marriage has been given a boost by the legalisation of same-sex marriage
It is also interesting to note that 87 per cent of marriages for opposite sexes in 2018 were first-time marriages (17,789) while 2,440 marriages included at least one divorced person and 568 marriages in which both parties were divorced. Marriage has also been given a boost by the legalisation of same-sex marriage. There were 664 same-sex marriages in 2018, 372 male unions and 292 female. Among this group, 86 per cent were single first-time marriages but it included 49 who were divorced and 140 who were already civil partners.
Irreconcilable breakdown
The legal freedom to remarry and have a “second chance” strengthens marriage as an institution. The most difficult stage for separating couples is for both to recognise that their relationship is irreconcilably broken and this often takes one partner longer than another. For couples without children, a long period of separation before “moving on” is not ideal. The women involved may find a new partner and want to have children within a legal context of marriage. In these cases, every year can matter a lot. For others the current lengthy period of separation required before divorce may promote reluctance for separated couples to tidy up their legal affairs.
We do not know how many couples are separated without any legal agreements. This is going to raise issues when one of the parties dies
We do not know currently how many couples are separated but are doing so without any legal agreements. This is going to raise issues later on when one of the parties dies, in relation to pension entitlements and inheritance. Let’s hope that this amendment is passed and gives people the freedom to marry again or to “tidy up their affairs”.
For couples with children, our report on post-separation parenting for the Department of Children and Youth Affairs (dcya.gov.ie) showed that parental couples face many difficult issues around the proper provision aspect of the legislation. If this amendment is passed we can begin to improve other aspects of that legislation.
Evelyn Mahon is fellow emeritus at Trinity College Dublin. She was co-author of a report on post-separation parenting, published by the Department of Children and Youth Affairs in 2011