Divorce

Divorce and Ireland

o   Divorce is a relatively recent phenomenon in Ireland, the first divorce granted in Ireland after independence was granted in 1997

1937-1995 article 31.3.2 stated that no law shall be enacted which granted the dissolution of marriage

First divorce referendum in 1986 but was rejected by the public

Second divorce referendum in 1995, accepted with close call of 50.28%

Family law divorce act 1996 was passed and came into force in Feb 1997

Divorce and the constitution

Court can only grant a divorce where at minimum, the grounds set out in the constitution are satisfied.

Further conditions may be added by law, article 41.3.2 conceives divorce as a role of the court

Conditions in the constitution

1. Spouses must have lived apart for at least 4 of the 5 previous years (later removed by the 38th amendment)

2. Must be no reasonable prospect of a reconciliation between the spouses

3. Court must make proper provisions for the spouses and any children of the spouses

4. Any further conditions prescribed by law are complied with

Recent reform around divorce in the constitution

38th amendment - dissolution of marriage act 2019 passed which removed the old living apart requirement

Family law 2019 Act replaced it with separation for 2 out of the previous 3 years

Family law divorce act 1996 act - currently

1. Spouses must have lived apart from one another for a period of at least two years during the previous three years

2. No reasonable prospect of reconciliation between the spouses

3. Provisions as the court sees fit will be made for the spouses and any dependent members of the family

Solicitors must certify that they have discussed with clients the alternatives to divorce.

Living apart

Section 5 of the 1996 Act

Spouses will be considered as living apart despite living in the same proximity if they do not live together in an intimate and committed relationship

A relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature

Cases of living apart

LeBrocq

• Sleeping in separate rooms is not enough

Mouncer

• Ate together and communicated, so not living apart

Fuller

• Wife left husband, husband later went to live with life and partner due to his illness- found to be living apart by english court of appeal

Irish example of living apart

McA v McA (2000) - very wide test

• Husband returned home after an affair to develop better relationship with son. They shared some meals, attended social functions and wife worked in husbands business.

• However they lived different lived and dated others

• Court found he only returned home to spend time with son and the state of mind of the couple was a relevant matter.

• Held to be living apart

Ireland and Fault or No-Fault Regime

Irelands divorce system is no fault (do not have to show fault from a party) though conduct may be relevant in granting remedies following divorce if it would be unjust to ignore it

Advantages of fault based regimes

§  Promote a sense of Justice

§  Vindication for wronged spouse

§  Prevent someone leaving a marriage unless there is good reason to do so

§  Promoting the institution of marriage, discouraging wrongdoing

§  Promoting a long-term approach to marriage

Disadvantages for Fault based regimes

§  Promotes mudslinging

§  Possible manufacture or exaggeration of blame

§  Usefulness? What is the benefit of ascribing blame?

§  Might both be to blame, or might not be either’s fault

§  Futility –what is the point in denying a divorce if one or both parties no longer wish to live together?

ISLA points out that fault based regimes often take longer and are more expensive

No fault regimes

o   Promote parties looking to the future

o   Steer parties away from mud-slinging

o   More dignified for parties

o   Quicker and usually easier to establish

o   Allow parties to proceed by mutual consent

Letting wrongdoers off the hook?

Adultery - ancillary remedies

The Courts in Ireland have generally not considered adultery relevant in relation to ancillary remedies

DT v CT (2003)

• Supreme Court overturned HC order that appeared to penalized the husband for infidelity

Steps for a Divorce in UK and Wales - Divorce, Dissolution and Separation Act 2020

1. Must have been married for 1 year

2. One or both spouses declare that the marriage has broken down irretrievably

   o   This statement is conclusive – no need to prove this; not possible to contest, though the other spouse can complete an answer form to say why they disagree with the divorce

3. Statement is followed by 20 week reflection period

4. Can then apply for conditional order of divorce

5. After a further six weeks and one day, you can then apply to end the marriage, a final order