Divorce Referendum an Opportunity for Practical and Compassionate Reform of the Constitution
9 April 2019
Seanad Group Leader and Spokesperson for Foreign Affairs and International Human Rights
I welcome the Minister to the House and welcome the opportunity to speak in support of this Bill. I am really delighted to see this important, practical and compassionate reform of the Constitution proposed and would acknowledge the work of Minister Josepha Madigan in highlighting the need for this reform. Thanks to Ursula Ni Choill and the Library & Research Services for the useful materials they have supplied.
The amendment proposed in the Bill, if passed, would delete the first paragraph of the text currently in Article 41.3.2 of the Constitution that requires spouses seeking to divorce to have lived apart for at least four out of the previous five years.
That provision was itself inserted by referendum in 1995; previously, Article 41.3.2 of the 1937 Constitution had stated that ‘no law shall be enacted providing for the grant of a dissolution of marriage’. A previous unsuccessful attempt had been made in 1986 to amend that article of the Constitution by referendum – the infamous divorce referendum of 1986, driven by the Labour party in government with FG. Despite polls showing support for legalisation of divorce in the leadup to that referendum, and despite the great campaigning work of the Divorce Action Group, it lost by 63.5%; largely due to fears about property division and adequate provision for dependent spouses.
Following that defeat, the Judicial Separation and Family Law Reform Act 1989 was passed to address concerns about property division and provision for spouses and children. After nearly a decade, a second divorce referendum was held on 24 November 1995. The campaign was intensely fought; I took an active role in it along with others in Labour and in the ‘Right to Remarry Campaign’ which rightly focused upon the need to ensure that people whose marriages had broken down would be able to get a ‘second chance’ through the introduction of legislation that would allow them to get married again. We made the point over and over that marital breakdown was already a real fact of life for many couples across Ireland; that legalising divorce would not in any way encourage marriage breakup; rather it would provide a compassionate means for couples to resolve their situation legally, and for them to regularise new relationships and provide adequately for the children of any successive relationships.
Labour took a leading role on the Yes side with Mervyn Taylor as the Minister for Equality and Law Reform who drove the Bill. The message of the campaign was upon compassion and humanity. But despite this much more persuasive message, the Fifteenth Amendment of the Constitution was only passed very narrowly by 50.28 per cent of the electorate, a margin of only 9,114 votes – a number that is now etched in the memory of all of us who campaigned on that referendum!
Many of us at the time were very concerned that the new text would place unnecessary obstacles in the way of couples whose relationships had irretrievably broken down. But it was clear during the campaign and in the result that people wanted reassurance that divorce would not be ‘too easy’; that we would not see a ‘divorce culture’ developing in Ireland.
Fears were stoked by the dire warnings from the No side that marital breakdown rates would escalate. We all recall the dreadful slogan ‘Hello Divorce, Goodbye Daddy’; or the posters bearing messages like ‘Divorce Aborts Marriage’.
One year later, on 27 November 1996, the Family Law (Divorce) Act 1996 was passed and came into operation on 27 February 1997. The 1996 Act gave power to the Courts for the first time to dissolve a marriage and allowed parties to remarry in a civil ceremony.
While the living apart provision was regrettably restrictive, it should be noted that the Act does allow for no-fault divorce; while account may be taken of the parties’ conduct in the granting of ancillary reliefs, conduct will not be taken into account in the granting of a divorce decree. Other systems based their divorce laws upon fault grounds; I think it’s very positive that we did not go down that route – as many commentators have pointed out, a fault based system brings more strain on the family, including children.
Since divorce was legalised, despite the dire predictions, the Irish divorce rate remains low; 0.7%, one of the lowest crude divorce rates in Europe where the average is 1.9% (measured as divorce rate per 1000 persons). Indeed, marriage rates have also remained strong; and we have of course in a very welcome move amended the Constitution in 2015 to enable gay couples to marry.
Since the divorce law was passed, we have also seen significant case law on its application, with clear rulings on the need to ensure proper provision is made for dependent spouses and children.
But what has become clear, even with a liberal interpretation of the term ‘living apart’ by the courts, is that the mandatory four year period presents serious and unnecessary obstacles to couples whose marriages have already broken down. Indeed, this mandatory four-year period is one of the longest in the world. 
Carol Coulter has written that the current waiting period forces couples into a cumbersome 2- stream legal procedure where they have to seek a judicial separation to regularise their situation on marital breakdown, while they are waiting for the four years to pass so that they can seek a divorce.
So I do greatly welcome this bill and the proposed amendment; and I look forward to campaigning for a Yes vote, along with my Labour colleagues; in keeping with our proud tradition of supporting and promoting important liberal social reforms.
On that note, I should say that I have been personally very involved with two particular reforms of marriage law myself; the first, the passage of the Civil Registration (Amendment) Act 2012, which enabled Humanist celebrants to conduct legal secular wedding ceremonies and which had started life as a private members bill I had brought into the Seanad.
Secondly, I am very proud that just last year we saw the passage of section 45 of the Domestic Violence Act 2018, which puts an end to the practice whereby individuals could get married before they turned 18, and which had originated from a motion to prohibit child marriage put down in the Seanad by Senator Jillian Van Turnhout and myself.
Finally, I am glad the Minister has published the Scheme of the Bill to be passed if the referendum succeeds as it’s important that people know the consequence of a Yes vote; but I don’t think we should continue to provide for a waiting period; the Scheme proposes two of the previous three years; is this necessary? Isn’t it still paternalistic? If we must have a waiting period, why not just one year?
And on that note, while I welcome this change to Article 41, there are more substantial changes necessary for the same Article; I would like to see a referendum to delete the sexist language that refers only to women and mothers as having duties in the home; and I would also welcome a referendum to change and expand the definition of ‘Family’ beyond the Family based upon marriage; reforms which are both long overdue.
Our current divorce law is far too restrictive and not reflective of the complex lives of married couples. We need to pass this important amendment to Respect the Privacy of couples, and to Show Compassion to those facing the trauma of marital breakdown.
 Shannon, Divorce Law & Practice, 28
 O’Brien, IJFL, 17
 Coulter, Irish Times January 20 2015