Irish Referendum To Change Requirement of Couples To Prove Separation From 4 Years to 2 in Divorce Cases

By Darren Smith, Weekend Contributor

I must admit that I am at a bit of a loss on this one. Presently, the Constitution of Ireland requires that couples prove to a family court they have remained separated for four of the preceding five years as part of a petition to dissolve a marriage. Now, a widely heralded amendment is headed to the polls to reduce the separation period to two of the past three.  Forgive me for thinking aloud but, what state interest is there in requiring any time frame?

Ireland’s Fine Gael political party took the position to support the amendment.  From their platform:

We are being asked to amend Article 41.3.2° to remove the constitutional requirement that couples whose marriages are recognised by a Court to have broken down completely, be separated for four years out of the last five before beginning divorce proceedings. Instead the Oireachtas will introduce a law reducing that required separation period to two years out of the last three.

We are being asked to amend Article 41.3.3° so that there is a clear constitutional basis for the Oireachtas to legislate to introduce greater consistency in recognising divorces granted by Civil Courts in countries inside and outside the EU.

The Oireachtas will pass a new law to amend the Family Law (Divorce) Act 1996. This will mean that spouses applying for a divorce will need to prove to a Court that they have been separated for two years out of the last three (rather than four years out of the last five). The new draft law – the Family Law (Divorce) (Amendment) Bill 2019 – has been published


Irish Society engenders a low propensity for divorce, at less than five percentage points–a remarkably low rate for a Western Nation.  Yet aside from much discussion and maneuvering in Dublin concerning the reasons for granting a divorce or the hardships endured by those required by the state to remain under a sense of de jure attachment, the fact of the matter is the state is engaging in a form of forced association and preventing individuals from electing to marry another person of their choosing.  Two years is simply a lesser form of injustice. The separation period should be fully repealed.

By Darren Smith

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