Sunday 15 September 2019

Shane Phelan: 'Facing into the most significant year for this law in two decades'


Stock photo
Stock photo
Shane Phelan

Shane Phelan

The coming year looks set to be the most significant for Ireland's divorce regime since it was signed into law in 1996.

Not only is a referendum planned to reduce the time couples must wait before their marriage can be dissolved, other significant aspects of divorce law look set to be examined by the Law Reform Commission. Brexit could also have an impact on divorce cases where one spouse is living in Ireland and the other in the UK.

Of the three, the referendum proposals are the most significant. Many people feel the period a couple must live apart before they can get divorced is simply too long.

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Currently the spouses must have lived apart for at least four of the previous five years.

Culture Minister Josepha Madigan has spearheaded a campaign to reduce the period a couple must live apart to two out of the previous three years, and has won Government support for a referendum.

Two issues have yet to be decided - when the referendum will take place, and what question will be put to the people.

One possibility is the vote would be on whether or not to reduce the period set out in the Constitution from four years to two.

Another possibility would be for a vote on whether to remove reference in the Constitution to a time period altogether and introducing a new, shortened period, in legislation instead. Meanwhile, subject to sign-off from the Oireachtas Justice Committee and the Cabinet, the Law Reform Commission looks set to examine a number of aspects of divorce law.

One area expected to be looked at is the rules regarding recognition of foreign divorces, which is a complicated area. Another area is that of so-called "clean-break" divorce. This is where there is a settlement which brings an end to the financial relationship between both spouses.

However, the Constitution states proper provision must be made for spouses and their children, having regard to the circumstances that exist. In theory this means a spouse can have a second bite of the cherry if a judge decides proper provision was not made. The commission is set to examine whether there is a case to be made for giving guidance to the courts, via legislation, on the issue.

According to commissioner Raymond Byrne, that may include setting out the circumstances where having a clean-break provision would be appropriate or not.

One issue which it is feared could arise in 2019 should Brexit go ahead is jurisdictional wrangling over where divorce proceedings should be heard. Under EU regulations, once proceedings have started in a particular member state, another member state must refuse jurisdiction.

However, it is feared that post-Brexit there could be arguments over jurisdiction before the actual divorce proceedings are dealt with. Then there is the issue of whether UK court rulings will enjoy the same recognition they do now.

Irish Independent

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