THE LAW SOCIETY of Ireland has called for a yes vote in the upcoming referendum to remove the minimum living apart period for spouses seeking a divorce from the Constitution. 

If passed on 24 May, the government would introduce primary legislation on the time period before you can get a divorce, rather than having it in the Constitution. 

Under the current system, married couples need to have lived apart for at least four years during the previous five years. The new proposals would see that reduced to just two years, with the Oireachtas providing the legislation for this.

The other aspect of the Constitution that will change if the referendum is passed relates to the recognition of foreign divorces.

The Law Society is set to make its opinion known at the launch of its report ‘Divorce in Ireland: The Case for Reform’ later today – which looks at divorce in Ireland over the last two decades. 

The report details a number of “unsatisfactory” aspects of the law in this area, including the “considerable” discretion given to judges dealing with cases. 

“Such discretion allows different judges to apply the long list of factors in section 20 of the Divorce Act in very different ways, thereby producing very different results in often similar cases,” the report states. 

The development of clear and applicable guidelines would assist the judiciary in making decisions, whether these be introduced by way of legislation or Supreme Court judgment.

Some of the other recommendations made in the report include:

• A specialised family court structure should be established.
• A definition or definitions of “living apart” should be developed.
• A set of principles for the determination of ancillary reliefs should be developed, to include all maintenance orders, lump-sum payments, settlements, property adjustment orders and pension adjustment orders.
• Provision for “clean break” divorces should be put in place, in appropriate cases.
• The law should be reviewed to allow for the development of pre-nuptial agreements that are valid and enforceable.
• A review of the issue of maintenance should be prioritised.

Duplication of legal expenses

According to the Central Statistics Office, the number of divorced people in Ireland has increased from 35,100 in 2002 to 103,895 in 2016. 

The principal author of the report, Dr Geoffrey Shannon, said that while each divorce case is unique, he warned that the current requirement to live apart for a period of four years prior to the institution of divorce proceedings may now be considered too long.

“It may result in a duplication of legal expenses and protracted proceedings, where parties are involved in both judicial separation and divorce proceedings over time.

The rise in the number of divorced persons also reflects an increasing acceptance of divorce within Irish society as a remedy to an irretrievably broken-down marriage.

“The questions facing Ireland now relate to what type of legal framework and practice should underpin its law in this arena. What type of divorce law and practice do we want? The Law Society has conducted this research in order to answer these difficult questions by looking at the evidence,” Shannon said. 

Minister for Culture, Heritage and the Gaeltacht, Josepha Madigan welcomed the Law Society’s report calling the current system unfair on separated couples both financially and emotionally, adding that the constitution is not the place for this matter. 

For most separating couples a judicial separation is unavoidable prior to seeking a divorce in order to obtain some legal clarity on matters relating to issues like the family home; property; pension and other ancillary reliefs

“This means, not one, but two lengthy and expensive sets of court proceedings benefiting nobody but family lawyers,” Madigan said in a statement.  

The other aspect of the Constitution that will change if the referendum is passed relates to the recognition of foreign divorces.

Here’s how to make sure you’re registered to vote on May 24