A yes vote would offer a lifeline to the tiny number of people coping with the difficulties of marriage breakdown, writes Louise Crowley.
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
Jill O’Mahony questions the wisdom of taking a provision related to an aspect of society as important as marriage out of the Constitution.
On Friday, the Irish electorate will vote on whether to retain or remove part 2(i) of article 41.3 of the Constitution.
Removing it would mean there would be no mention of a timeframe whereby a separated couple must live apart in order to qualify for a divorce within the Constitution.
As a result, the Oireachtas would be responsible for legislating on this issue.
In a progressive world, if a married couple is unhappy in their relationship, and this unhappiness is bleeding into other areas of their lives, then it stands to reason that they should be able to get a divorce, right? Even a quick one?
Platitudes such as “life is short” ring in my ear as I write this. So then, aside from any religious beliefs or doctrines, why would someone vote no on May 24?
Because it seems to be obvious, doesn’t it?
People should be free to choose divorce if and when they want to, and the State should have less of an impact on that choice.
The first thought I had was related to our Government. The proposed change in the constitution — removing the requirement to live apart for four years prior to applying — puts quite a lot of power in the hands of the Oireachtas (not for the first time).
For a society that has given the current Government a 5/10 in how they handle the economy (Red C poll, April), why do we feel they could handle issues related to our personal lives much better?
So, voting yes logically means that we feel the Government is best positioned to legislate for divorce.
This sits slightly uncomfortably with me, particularly in light of the astronomical budget overruns for the children’s hospital and monetary concerns about broadband rollout plans at the moment.
Furthermore, when we change our Constitution we are, as a society, saying that these changes are reflective of our society and culture.
While marriage in Ireland has historically been linked to religion, religion is not the reason for marriage.
I feel this is the point on which many people may dismiss this debate — they throw the religion argument into the fray and fail to think about the issue any further.
From a social perspective, marriage is useful because it creates a microcosm of the larger society; it reflects that society and ideally creates a stable environment for children to grow up in (which research shows is fundamental to healthy child development).
It prepares children (in most cases) to become members of society in the future.
This involves teaching them manners, attitudes, beliefs, and principles.
Historically, the family unit has done this quite successfully, and we generally inherit much of our social identities from our families.
However, modern Irish society looks very different from Ireland of the 1950s and ’60s and so the family unit has also changed.
We saw the introduction of divorce in 1996 which meant that there was finally a legal recourse to dealing with an abusive, toxic, or unhappy relationship, for example.
The types of family units changed as a result — we now have blended families, one-parent families and, more recently, same-sex families within the legal bounds of marriage.
All of this combined to make Ireland a more caring and progressive place but, at the same time, Ireland has become more consumerist.
One of the key features of this kind of society is the privileging of the individual above all else.
The wishes, desires and choices of individuals become central to cultural values and principles. These attitudes are reinforced by multinational organisations selling products.
Once people are chasing individuality they are buying (into) the identities that, for example, influencers are selling them. An alluring, bright and distracting world, yes, but one potentially incompatible with married life.
Married life requires you to put yourself second for the greater good. Psychologists maintain that healthy relationships are forged through ongoing, persistent, proactive and devoted efforts in maintaining the quality of the relationship.
This rise of the self-serving individual is matched by equally high expectations of marriage. Narratives are sold to us online, in movies and TV shows of the perfect man or woman in the perfect romantic relationship.
When these characters are faced with difficulties in the relationship, the result is often, aside from perhaps a feeble attempt at communication, relationship breakdown.
Portrayals of relationships in which couples are presented with problems which they eventually overcome through healthy communication are few and far between.
Romantic love and the accompanying relationships are idealised at the same time as they are disposable.
The message being “if it doesn’t work move on to the next”, all the while failing to realise that people aren’t perfect and all relationships need negotiation.
While the grass may look greener, a new relationship will need the same amount of work eventually, because we are separate people dealing with the realities and difficulties associated with life.
If relationships and thus marriages are less sacred and more easily disposed of, it stands to reason that they are functionally less useful.
Rather than teaching positive lessons through helpful communication practices, children are taught to look out for ‘number one’.
Our right to choice as individuals should always come first, we are led to believe, but harmony in society is built on community; on members of that community looking out for one another.
I don’t worry about divorce as a legal entity or even shortening the time people have to live apart; for some this might be absolutely necessary.
I do, however, worry about the message we are sending our youth when we leave the legislating of divorce wide open and subject to the whims of a Government we have faith in 50% of the time.
Are we telling them to privilege the transience of relationships above the effort in maintaining them?
I also worry about how we treat those with whom we have built relationships, families and lives.
In an Ireland rapidly changing, perhaps it might be worthwhile stopping to think about what kind of society we want because how we legislate for our citizens sets the stage for how people will interact and who they become.
Jill O’Mahony is a lecturer in sociology in the Waterford Institute of Technology, where she has been based for 11 years