On Friday 24th May 2019, you will be asked to vote on a proposal to change the Constitution of Ireland in relation to divorce.
The proposal is about two issues relating to divorce, namely how long people must be living apart before applying for a divorce, and the recognition of foreign divorces.
There will be one question on the ballot paper and voters can either vote Yes to allow both changes, or No to reject both changes. Voters cannot accept one change and reject the other.
How laws are made
Laws are made by the Oireachtas. The Oireachtas consists of the Dáil, the Seanad and the President. Laws made by the Oireachtas must comply with the Constitution. The Constitution sets out the basic law of the State.
Laws, if challenged, may be reviewed by the courts. The courts may declare a law invalid if it conflicts with the Constitution. The Constitution can only be altered by the people in a referendum.
Divorce within the State
The Constitution originally prohibited divorce within the State.
In 1995, a referendum was passed by the people which removed the prohibition on divorce by permitting a court to grant a divorce when certain conditions are established including:
- At the date divorce proceedings are instituted, the spouses have lived apart for at least four out of the previous five years. The minimum four-year period does not have to have been continuous.
- There is no reasonable prospect of reconciliation between the spouses.
- Proper provision has been or will be made for the spouses, the children of either or both spouses and any other person prescribed by law.
The Oireachtas passed the Family Law (Divorce) Act 1996 to put into effect what the people had voted for, which includes the minimum four-year separation period.
Recognition of foreign divorces
The Constitution prohibits persons who have obtained a foreign divorce that is not recognised under Irish law from remarrying during the lifetime of the other party to the marriage.
The 1995 referendum, which removed the prohibition on divorce, did not alter this constitutional provision.
The Constitution does not set out the rules for recognition of a foreign divorce. Some foreign divorces are entitled to recognition within the State under existing law. At the moment, different recognition rules apply depending on where and when the foreign divorce was obtained.
One vote, two proposed changes
On the 24th May 2019, you are being asked whether or not to change the current Article 41.3 of the Constitution.
The present Article 41.3
- The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
Proposed change no.1
To remove this section and renumber the subsequent clauses
- A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that-
- 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,
- there is no reasonable prospect of a reconciliation between the spouses,
- 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
- any further conditions prescribed by law are complied with.
- No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Consititution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.
Proposed change no.2
to replace this section with the text as following: Provision may be made by law for the recognition under the law of the State of a dissolution of marriage granted under the civil law of another state.
The legal effect of a YES vote
If a majority votes Yes, then the Constitution will change.
- The Constitution will no longer require a person applying for a divorce to have lived apart from his or her spouse for at least four years. The minimum period of four years of living apart set out in the Family Law (Divorce) Act 1996 will continue to apply, unless and until the Oireachtas changes the law.
- The Oireachtas already has power to make laws recognising foreign divorces. This power will be made explicit in the Constitution.The explicit constitutional prohibition on a person remarrying in the State who has obtained a foreign divorce not recognised under Irish law will be removed. It will still be prohibited for a person to remarry in the State unless their foreign divorce is recognised under Irish law.
The legal effect of a NO vote
If a majority votes No, then the Constitution will remain unchanged.
- The Constitution will continue to require that those applying for a divorce must have been living apart for at least four out of the previous five years. The Oireachtas will not have the power to change this.
- The existing power of the Oireachtas to make laws recognising foreign divorces will not change. The explicit constitutional prohibition on a person remarrying in the State who has obtained a foreign divorce not recognised under Irish law will remain.
Further information can be found at The Referendum Commission Website https://www.refcom.ie/