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Divorce referendum to coincide with EU and local elections
Pic: Cian Redmond

29 Jan 2019 / legislation Print

Divorce vote dovetails with EU and local elections

A referendum to amend the constitutional provisions on divorce will be held alongside the European and local elections in late May, the Government has announced.

Justice minister Charlie Flanagan said that Ireland had one of the lowest divorce rates in Europe, which was to be welcomed, but some marriages broke down irreconcilably, causing immense sadness and stress for all concerned.


“The Government wishes to ensure that the process for obtaining a divorce is fair, dignified and humane, and allows both parties to move forward with their lives within a reasonable timeframe,” he said this today.

He acknowledged the work of Minister Josepha Madigan (pictured above) on her Private Members’ Bill, which initiated legislative discussion on the issue.

“Both Minister Madigan and I dealt with marital breakdowns over the course of our legal careers, and we are both very conscious of the emotional and financial cost of the current constitutionally mandated separation periods, and the need for change,” he said.

“In May, the people will be asked to approve an amendment to article 41.3.2 of the Constitution to remove the minimum living-apart period for spouses applying for a divorce. It is the Government’s intention to deal with the living-apart period by way of ordinary legislation,” he said.

The Constitution currently requires a couple wishing to divorce to have lived apart for four out of the previous five years.

If the referendum is passed, the Government will amend section 5(1)(a) of the Family Law (Divorce) Act 1996 to reduce the minimum period to two years during the previous three years.

Minister Flanagan said: “Over time, we have learned that complex questions of social policy are best dealt with through detailed legislation in the Oireachtas, rather than in our Constitution.

Begin again

“The fundamental principles and protections concerning divorce will not change. However, removing the time period from the Constitution would give the Oireachtas greater flexibility to legislate to ease the burden on people who have experienced the tragedy of a marriage breakdown, and wish to begin again.

“I am proposing a bill to reduce the living-apart period to two years, thereby allowing people to bring a divorce application at an earlier time. As it stands, the long separation period required under the Constitution frequently leads to couples seeking a judicial separation prior to obtaining a divorce, with attendant legal costs and additional stress.”


Minister Flanagan stated that the constitutional protections around the granting of a divorce would remain in force.

“If the referendum is passed, the current provisions containing the requirements that there be no prospect of reconciliation, and that proper provision exists or will be made for spouses and children, will continue in the Constitution. It will also remain the case that only a court can grant a divorce.”

The public will also vote on replacing the provision on recognition of foreign divorces in article 41.3.3 of the Constitution, so that the Oireachtas may legislate for the recognition of foreign divorces obtained outside the State.

Minister Flanagan said: “The language of article 41.3.3 is unclear and is now considerably out of date. It is consistent with a time in our history when divorce was expressly prohibited under the Constitution.

“The text has not kept pace with the changes people voted for in 1995. The referendum in May is an opportune moment to remedy this anomaly. 

Legal issues

“The Law Reform Commission will examine the legal issues relating to the recognition of foreign divorces as part of its new law-reform programme, after the referendum.

“At the moment, different rules apply to the recognition of foreign divorces granted by civil courts within and outside the European Union. I intend to address that inconsistency, and I will be guided by the report of the Law Reform Commission in drafting new legislation,” he concluded.

A Referendum Commission will now be established for the divorce referendum in May.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland