It is now 20 years since the referendum which enabled divorce legislation to be enacted in Ireland (in the form of the Family Law (Divorce) Act 1996) was passed. This event was regarded as momentous when it happened but its consequences have proved to be more limited than expected.
The legislation echoed that which had been introduced during the wave of reform in divorce in many countries of two to three decades earlier in that it provided for no-fault divorce and thus accepted that break-down of the relationship between spouses was sufficient grounds for divorce.
However, it contained an important restriction in that spouses had to live apart for four years before they could be granted a divorce. It prescribed what amounted to a two-step process of exit from marriage, with the first step taking place when couples parted through either de facto or legal separation and the second step when they divorced at least four years later.
The follow-on from divorce liberalisation in other western countries gave indications of the consequences that might have been expected to follow. Divorce rates in most countries leaped in response to easing of divorce law, typically rising from an annual divorce rate in the region of 1 divorce per 1,000 population per year to between 2.5 and 3.5 per 1,000. However, this pattern was not universal. Countries such as Italy and Spain which had adopted a two- step divorce process similar to Ireland’s had experienced low divorce rates. Many of those taking the first step into separation were deterred from taking the second step into divorce by the cost and slowness of the procedures involved and possibly also by the limited interest in the right to remarry, which is the main focus of the second step.
In light of the dampening effect of two-step divorce on divorce rates in Italy and Spain, it is not wholly surprising that no rush to the divorce courts occurred in Ireland after its divorce law came into effect. Nevertheless it was something of a surprise quite how low the uptake was. By 2007, 10 years after the advent of divorce, the divorce rate in Ireland had risen briefly to match that of Italy (at almost 0.9 per 1,000) but then fell back by some 25%. At no point did the Irish divorce rate break through the threshold of 1 divorce per 1,000 population and today it is down to 0.6 per 1,000. Today’s divorce rate in Ireland would have been counted as low for most countries even in the 1950s.
As in Italy, it is likely that taking separation as well as divorce into account the total rate of marital breakdown in Ireland is of the order of double the divorce rate, undoubtedly in excess of the 1 per 1,000 threshold. Thus a comprehensive measure of marital breakdown, counting both separation and divorce, would place Ireland in less of an outlier position in Europe than a measure based on divorce alone. Nevertheless, even at that level, the marital breakdown rate is still moderately low by western international standards and for the time being at least shows no sign of upward movement.
Irish patterns of marital breakdown are not easy to explain. One might point to a lingering Catholic heritage in Ireland as one factor, but the Catholic explanation for low divorce has lost much of its force as other Catholic societies such as Portugal and Austria have departed the ranks of low divorce societies. Another part of the explanation may lie in the growth of cohabitation and its possible role as a form of trial marriage which allows couples to test their relationship and, if necessary, exit from it before they commit to marriage. However, this explanation also has its limits since rates of cohabitation are not particularly high in Ireland.
The limited take-up of divorce even among those who separate in part reflects the cost and slowness of divorce proceedings but also is consistent with the limited legal and behavioural significance of divorce. Legally, Ireland already had extensive provisions for dealing with most aspects of exit from marriage before divorce arrived (in the form of legal separation and provisions for maintenance of spouses and children, custody and access). Divorce legislation was concerned with the one major outstanding issue — the right to re-marry.
Thus its legal import was limited mainly to couples where at least one partner had an interest in a second union, while for the rest, cheaper and easier legal settlements short of divorce could prove sufficient. Interest in second marriage seems to be confined to a minority of separating couples in Ireland: in 2011, only 6-7% of marriages took place where at least one of the partners had previously been married, the lowest rate in Europe. The indications are that Irish people are cautious about marriage: they are slow to enter a first marriage and if they part company with their first spouse, they are even more cautious about making a second attempt.
Tony Fahey has been Professor of Social Policy in University College Dublin since April 2007. His wide ranging research deals with a range of issues connected to social policy in Ireland and the European Union, including family dynamics, housing, poverty and spatial aspects of disadvantage. Currently, he is coordinator of UCD’s Research Programme on Children and Families and is working on a detailed analysis of family well being in Ireland.