Full wording of divorce referendum amendment revealed



DivorceProposals to amend the Constitution to remove the requirement for spouses to live apart for a minimum of four years out of the preceding five before they can be granted a divorce have been published.

Justice Minister Charlie Flanagan yesterday announced the Government’s wording for the amendment of articles 41.3.2 and 41.3.3 of the Constitution, which will now be considered by the Oireachtas.

The Government proposes that the amendments to be proposed in the referendum will be:

  1. to delete the following paragraph from Article 41.3.2° of the Constitution:

    “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,”, and

  2. to delete the following subsection from Article 41.3 of the Constitution:

    “3° 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 Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.”,

    and to substitute that subsection with the following:

    “3º 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 amendments will be brought forward by way of amendments to the Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016, a private members’ bill introduced by Josepha Madigan TD which is currently at report stage in the Dáil.

If the referendum is approved, the Government will bring forward a Family Law (Divorce) (Amendment) Bill to amend section 5 of the Family Law (Divorce) Act 1996 to reduce the minimum living apart period specified in that Act to two years during the previous three years (from four years during the previous five years).

Mr Flanagan said: “Over time, we have learned that complex questions of social policy are best dealt with through detailed legislation in the Oireachtas rather than within the confines of our Constitution.

“The fundamental principles and protections concerning divorce will not change. However, removing the time period from the Constitution would give the Oireachtas greater flexibility to legislate to ease the burden on people who have experienced the tragedy of a marriage breakdown and wish to begin again.

“I am proposing a bill to reduce the living apart period to two years, thereby allowing people to bring a divorce application at an earlier time. As it stands, the long separation period required under the Constitution frequently leads to couples seeking a judicial separation prior to obtaining a divorce with attendant legal costs and additional stress.”

He added: “If the referendum is passed, the current provisions containing the requirements that there be no prospect of reconciliation and that proper provision exists or will be made for spouses and children will continue in the Constitution. It will also remain the case that only a court can grant a divorce.”



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