Referendum on the regulation of divorce
Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill 2016.
The proposal was about two issues relating to divorce, namely how long people must be living apart before applying for a divorce, and the recognition of foreign divorces. There was one question on the ballot paper and voters could either vote Yes to allow both changes, or No to reject both changes.
The proposed amendment to the Constitution was put to the people on Friday 24 May 2019. The proposal was passed by the people.
Independent Guide
An Independent Guide was published in booklet form and distributed to all homes in the state. This guide contains a short description of the proposal.
The Commission also published an independent guide for people with an intellectual disability. This guide was produced by the Referendum Commission in collaboration with Down Syndrome Ireland.
The Report
You can read the Referendum Commission’s report on the referendum on the regulation of divorce here.
Referendum FAQs
Referendum proposal
The proposal is to change two separate parts of the Constitution relating to divorce, in one referendum.
The first change proposed is to remove Article 41.3.2.˚ i of the Constitution, which provides that a person seeking a divorce must have lived apart from their spouse for at least four out of the previous five years. Removal of that part of the Constitution would mean that divorce would still be allowed in Ireland, but there would be no reference in the Constitution to how long people applying to court for a divorce must have lived apart.
The second part of the Constitution which is proposed to be changed is Article 41.3.3˚. This Article provides that a person who has obtained a foreign divorce which is not recognised in Ireland cannot legally remarry here during the lifetime of his/her spouse. The current version of Article 41.3.3 has not prevented the Oireachtas from passing legislation concerning recognition of foreign divorces. The proposed change is to replace the existing Article 41.3.3˚ with a new Article 41.3.3˚ explicitly stating that the Oireachtas can legislate to recognise foreign divorces. The proposed replacement wording would also remove the current wording in the Constitution which expressly prohibits a person who has a foreign divorce which is not recognised within the State from remarrying. However, Irish law will continue to prohibit a person whose marriage remains valid under Irish law from marrying another person.
No. Both parts are in the same proposal to amend the Constitution. This means if there is a Yes vote, both parts will change. If there is a No vote, neither part will change.
No. Neither a Yes vote nor a No vote will remove Article 41.3.2 which allows for divorce. Divorce will still be legal in Ireland no matter what the result of the referendum is.
Living apart period
If there is a No vote, the Constitution would continue to state that a person seeking a divorce must have lived apart from their spouse for at least four out of the previous five years before applying for a divorce.
The requirement for spouses to be living apart for at least four out of the previous five years before they can apply for a divorce is currently set out in legislation as well as in the Constitution. If there is a Yes vote, that requirement would no longer be in the Constitution but it would still be in legislation. This means that the separation period will stay at a minimum of four of the five previous years unless and until the law were changed.
If there is a Yes vote, there would no longer be any reference in the Constitution to how long people must be living apart before they can apply for a divorce. It would instead be a matter for the Oireachtas to pass laws dealing with that.
Currently, section 5 of the Family Law (Divorce) Act 1996, repeats the living apart requirement set out in the Constitution and requires that spouses must have lived apart for at least four out of the previous five years before applying for a divorce. If there is a Yes vote, this provision will continue to apply but could be amended by the Oireachtas.
The Government has said that if there is a Yes vote, it will propose a law that spouses will have to have been living apart for at least two out of the previous three years before they can apply for a divorce, instead of the current requirement to have lived apart for at least four out of the previous five years. Any proposals of the Government would have to be supported by a majority of TDs and Senators before they could become law.
Yes. A Yes vote would give the Oireachtas the power to change the length of time a spouse must be living apart before they can apply for a divorce. It would therefore be open to the Oireachtas to change that length of time in the future.
Not necessarily. The words in the Constitution are “living apart”. The current judgments of the courts regarding divorce recognise that people can be “living apart” if they live in different dwellings or if they lead separate lives under the same roof, in that they do not share any of the normal aspects of daily living. Equally, the fact that married people are living in separate places does not necessarily mean that their marriage has broken up. The intentions of the spouses and their attitude to the marriage will be important in this regard. A court deciding whether to grant a divorce determines whether a couple are living apart.
No. The other provisions in Article 41.3.2˚ are that a court may grant a divorce where that court is satisfied that:
• there is no reasonable prospect of a reconciliation between the spouses;
• proper provision exists or will be made for the spouses, for any children of either or both of them, and for any other person prescribed by law, and
• any further conditions required by law are complied with.
These provisions will not change in the event of a Yes or a No vote in this referendum.
Foreign divorce
No. A person whose marriage is recognised in the State and who has a foreign divorce which is not recognised within the State cannot remarry.
Yes, foreign divorces are recognised within the State in certain circumstances. Different recognition rules apply depending on where and when a foreign divorce was obtained.
Section 57 of the Offences Against the Person Act 1861 makes it a criminal offence to be married to more than one person at the same time.
No. The defining characteristic of marriage as envisaged by the Constitution is that it entails the voluntary entry into mutual personal and legal commitments on the basis of an equal partnership between two persons, both of whom possess capacity to enter into such commitments, in accordance with the requirements laid down by law. Article 41.4 states that marriage may be entered into by “two persons”. The Supreme Court has found that recognition of polygamous marriage would be contrary to a fundamental constitutional principle that marriage is a union between two people and would also be contrary to public policy.
Different recognition rules apply depending on where and when a foreign divorce was granted.
Foreign Divorce obtained before 2nd October 1986
A foreign divorce granted before 2nd October 1986 will be recognised in this jurisdiction under common law provided that it was granted in the courts of a state where one or other of the spouses was domiciled at the time the divorce proceedings were instituted.
Foreign Divorce obtained after 2nd October 1986
A foreign divorce granted after 2nd October 1986 will be recognised in this jurisdiction under section 5(1) of the Domicile and Recognition of Divorces Act 1986 provided that it was granted in the courts of a state where one or other of the spouses was domiciled at the time the divorce proceedings were instituted.
Foreign Divorce obtained in a European Union state, other than Denmark, granted after 1st March 2001 but before 1st March 2005
A foreign divorce granted after the 1st March 2001, but before the 1st March 2005 in a European Union state (other than Denmark) will be recognised on the basis of habitual residence in accordance with the terms of Brussels II Regulation (EU Council Regulation (EC) No. 1347/2000).
Foreign Divorce obtained in a European Union state, other than Denmark, after 1st March 2005
A foreign divorce granted after 1st March 2005 in a European Union state (other than Denmark) will be recognised on the basis of habitual residence in accordance with the terms of Brussels II bis Regulation (EU Council Regulation (EC) No. 2201/2003).
‘Domicile’ in divorce cases is defined as the place in which a person has a fixed and permanent home to which, when he or she is absent, he or she has the intention of returning. Domicile therefore depends both on the physical fact of residence and the intention of remaining.
Under Brussels II bis Regulation (EU Council Regulations (EC) No. 1347/2000 & No. 2201/2003), a spouse applying for a divorce is habitually resident in a Member State of the EU, if he or she has been resident in that Member State for a year before applying for the divorce (or for six months if he or she is a national of the relevant State).
Yes. The Oireachtas enacted the Domicile and Recognition of Foreign Divorces Act 1986, and has the power to retain or change that Act, or to pass further legislation.
If there is a No vote, the Constitution will continue to expressly state that people whose marriages are recognised in Irish law but whose foreign divorces are not recognised in Ireland cannot legally remarry in Ireland as long as their spouse is alive.
Yes. The Minister for Justice and Equality has said that he intends to propose laws to make the rules regarding recognition of foreign divorces more consistent. What law, if any, are passed is a matter for TDs and Senators. However, the laws dealing with foreign divorces will stay as they are now unless and until any such new laws are passed. Some foreign divorces are already recognised within the State in certain circumstances.
The Constitution and current law
The Constitution of Ireland is the document that sets out the framework for how the Irish State is to be governed, as well as setting out a number of fundamental rights.
The first step in making a law is the production of a Bill. A Bill is proposed in the Oireachtas and is then debated. If it is passed by the Dáil and the Seanad, it is then presented to the President for signature. Once a Bill has been signed, it becomes law.
Legislation passed by the Oireachtas must comply with the Constitution. The Oireachtas is not allowed to enact any law that is contrary to the Constitution. If a piece of legislation is challenged, the Courts can declare that it is invalid if it is found to be in conflict with the Constitution.
When a Bill is presented to the President to be signed, he or she may refer it to the Supreme Court for a decision on whether the Bill is in conflict with the Constitution.
If a Bill is referred to the Supreme Court, that Court must decide whether or not the Bill conflicts with the Constitution. If the Supreme Court decides that the Bill is unconstitutional, the President cannot sign it and it does not become law.
The Constitution can only be altered by the people in a referendum. Every proposal to amend the Constitution starts in Dáil Éireann as a Bill. When a Bill to amend the Constitution is passed by a majority of both the Dáil and Seanad, it is submitted to the people in a referendum. If a majority of those voting in the referendum vote in favour of the proposal, the Bill is then signed by the President and the Constitution is amended.
Article 15.1.2˚ of the Constitution says that the Oireachtas consists of the President and two Houses, Dáil Éireann and Seanad Éireann.
Dáil Éireann
The Dáil consists at present of 158 TDs who are elected from 40 different constituencies.
Seanad Éireann
The Seanad consists of 60 Senators. Forty-three of them are elected to five panels representing a range of vocational interests. Six senators are elected by the graduates of two universities – three from National University of Ireland and three from the University of Dublin (Trinity College). Eleven are nominated by An Taoiseach.
The President
The President is the head of State. He or she has a number of important constitutional functions including the signing of Bills into law, and deciding whether or not to refer a Bill to the Supreme Court for a decision as to whether or not it is constitutional. In addition, the President has a ceremonial role.
Article 41 of the Constitution is entitled ‘The Family’
Within that Article, Article 41.3.1 says: “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.”
Article 41.4 states: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”
The present referendum does not propose to make any changes to these provisions, but only to the provisions concerning divorce.
Article 41.3.2˚ says:
A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that –
i at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
ii there is no reasonable prospect of a reconciliation between the spouses,
iii such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and
iv any further conditions prescribed by law are complied with.
Article 41.3.3˚ says
No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.
Section 57 of the Offences Against the Person Act 1861 makes it a criminal offence to be married to more than one person at the same time.
No. The defining characteristic of marriage as envisaged by the Constitution is that it entails the voluntary entry into mutual personal and legal commitments on the basis of an equal partnership between two persons, both of whom possess capacity to enter into such commitments, in accordance with the requirements laid down by law. Article 41.4 states that marriage may be entered into by “two persons”. The Supreme Court has found that recognition of polygamous marriage would be contrary to a fundamental constitutional principle that marriage is a union between two people and would also be contrary to public policy.
Different recognition rules apply depending on where and when a foreign divorce was granted.
Foreign Divorce obtained before 2nd October 1986
A foreign divorce granted before 2nd October 1986 will be recognised in this jurisdiction under common law provided that it was granted in the courts of a state where one or other of the spouses was domiciled at the time the divorce proceedings were instituted.
Foreign Divorce obtained after 2nd October 1986
A foreign divorce granted after 2nd October 1986 will be recognised in this jurisdiction under section 5(1) of the Domicile and Recognition of Divorces Act 1986 provided that it was granted in the courts of a state where one or other of the spouses was domiciled at the time the divorce proceedings were instituted.
Foreign Divorce obtained in a European Union state, other than Denmark, granted after 1st March 2001 but before 1st March 2005
A foreign divorce granted after the 1st March 2001, but before the 1st March 2005 in a European Union state (other than Denmark) will be recognised on the basis of habitual residence in accordance with the terms of Brussels II Regulation (EU Council Regulation (EC) No. 1347/2000).
Foreign Divorce obtained in a European Union state, other than Denmark, after 1st March 2005
A foreign divorce granted after 1st March 2005 in a European Union state (other than Denmark) will be recognised on the basis of habitual residence in accordance with the terms of Brussels II bis Regulation (EU Council Regulation (EC) No. 2201/2003).
Sample of the Commission’s information campaign
A selection of radio interviews with the Chairperson of the Referendum Commission from this information campaign.
Outdoor advertisement – Co. Cork
Co. Donegal