The proposal to be considered by the Irish voters on May 24 relates to two aspects of the regulation of divorce; namely how long people must be living apart before they can apply for a divorce, and secondly the recognition of foreign divorces.
Although two separate issues, they are presented together and voting Yes will approve both proposals.
As regards the living apart requirement, currently, the law provides that either spouse has a right to secure a decree of divorce once they satisfy the three requirements outlined in the governing laws, namely — there is no reasonable prospect of reconciliation; the court is satisfied that proper provision has been made for both spouses and any dependent children; and that the parties have been living apart for four out of the five years preceding the making of the application to the courts.
Unusually, these requirements are currently set out in both the governing Act, the Family Law (Divorce) Act 1996, and in the Constitution, which is more typically reserved for fundamental rights and principles, with the detail being a matter for the Oireachtas to address.
What is proposed now is the removal entirely of the waiting period to apply for divorce from the Constitution, and for its regulation to be more appropriately positioned within the remit of the Oireachtas.
It is expected that the new laws that would follow a yes vote will provide for a shorter two-year waiting period.
The inclusion of the four-year waiting period in the Constitution sought to copper-fasten the conservative rules governing divorce in order to secure the votes of the undecided voters in the 1995 referendum.
It served to reassure the voters that the terms of divorce which informed the pre-referendum debate would remain unchanged and unchangeable unless first approved by the Irish people.
It was also regarded as a means of retaining State control; to act as a tool to reduce the availability of divorce, requiring a spouse to wait for this extended period of time to protect the marital bond and preserve the union for as long as possible.
The scaremongering at the time referenced the likelihood of the flood-gates opening, predicting an inevitable avalanche of applications that would follow once laws were enacted.
The then minister for Justice, Equality, and Law Reform, Mervyn Taylor, sought to reassure those who had voted against the referendum that there would be no easy or quick divorce, that there would be no divorce for marriages in difficulty, only for marriages that are irretrievably at an end.
This view was politically necessary to convince undecided voters that divorce would remain a remedy that is difficult to secure.
However, the lived experience is that no divorce is easy and no divorce is quick.
It is and will remain a considered process that requires court supervision and approval, and voting Yes in the referendum to remove the regulation of the waiting period for divorce from the Constitution will not change this reality.
The current rate is a mere 0.6 per thousand people, with Britain, France, and Austria at 1.9, Spain at 2.1, and the US at 3.2.
By imposing the lengthy four-year living apart requirement, the current laws suggest that the desire alone of spouses to exit the marriage is insufficient.
Rather, this insistence of the need for a lengthy waiting period imposes an objective view of a ‘deserving’ spouse whose circumstances merit access to divorce in the eyes of the State.
Compassion and understanding demand that we trust and empower those who are dealing with the immense difficulties associated with a broken marriage and reduce the waiting period to two years.
It does not demand that parties apply after two years, but it does facilitate those who wish to do so.
As regards the issue of the recognition of foreign divorces, this welcome development seeks to remove the existing refusal to recognise a foreign divorce where the marriage would remain lawful in Ireland.
A yes vote on May 24 will require Ireland to respect and recognise divorce decrees from other jurisdictions where the decree was secured in line with the laws of that country.
Currently, the uncertainty that surrounds this issue is incredibly unhelpful, and transferring the law-making responsibility to the Oireachtas opens the way for clear and modern regulation.
Additionally, enhancing the recognition of foreign divorces means that a party now resident in Ireland will be better positioned to secure financial relief from their former spouse where this is necessary.
By restricting the rights of parties to apply for divorce and delaying their right to determine unresolved issues, including financial provision and arrangements regarding access and custody of the children, it prevents the parties from finalising their circumstances, most likely contributing to ongoing disharmony, and prejudicing vulnerable spouses; especially where a spouse is financially dependent on the financially stronger spouse, or indeed where the applicant is the victim of domestic abuse and needs court intervention to dissolve the union and sever the marital ties.
In a more multi-cultural society involving many more international marriages, and families who reside in more than one jurisdiction in the course of their lifetime, it is important that Ireland recognises the rights of those individuals and indeed the laws as applied by other jurisdictions.
By voting yes and according the law-making power on both issues to the Oireachtas, our public representatives can create, reform and modify laws to respond to changing social norms and expectations.
While not definitively decided as yet, it is likely that the new governing laws will provide for a reduced two-year waiting period, making divorce more accessible and facilitating parties to more quickly secure a resolution of their rights and obligations.
Greater recognition of foreign divorces will similarly provide stability and consistency for affected parties. A Yes vote will empower these changes, and indeed the reform of any other regulatory aspects of divorce into the future.
Dr Louise Crowley is a senior lecturer in family law, School of Law, University College Cork