Family Law Bill 2019: Second Stage

I move: "That the Bill be now read a Second Time".

I am pleased to introduce the Family Law Bill 2019 in this House and I look forward to our discussion of its provisions. Deputies will recall that the Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Act 2019 was signed into law on 11 June, following its approval by the people in a referendum on 24 May. The Act amended Article 41.3.2° of the Constitution to remove the minimum living apart period for spouses seeking a divorce. It also replaced the text of Article 41.3.3° on foreign divorces.

I acknowledge the work of the Minister for Culture, Heritage and the Gaeltacht, Deputy Josepha Madigan, in introducing the Private Members' Bill that became that Act.

The effect of the amendment to Article 41.3.2° is that the Constitution no longer provides for a minimum living apart period for spouses who wish to apply for a divorce but that such a period may be defined in law by the Oireachtas. Removing the minimum living apart period from the Constitution has given the Oireachtas flexibility to legislate to ease the burden on people who have experienced the tragedy of marriage breakdown and who wish to begin again. While a living apart period is no longer prescribed in the Constitution, the period of four years during the previous five years specified in section 5(1)(a) of the Family Law (Divorce) Act 1996 continues to have effect until it is amended by an Act of the Oireachtas.

On 26 March, at the same time as the text of the amendments proposed for the referendum was published, the Minister for Justice and Equality published the draft general scheme of a Bill to reduce the minimum living apart period specified in section 5 of the Family Law (Divorce) Act 1996 to two years during the previous three years. The Minister and I acknowledge the broad cross-party support in the Oireachtas for this proposal. Reducing the living apart period will enable couples whose marriages have broken down with no reasonable prospect of reconciliation to regularise their affairs sooner. A shorter living apart period will also have the potential to reduce the legal costs involved, as couples would be less likely to need to apply for a judicial separation, or make a formal separation agreement, while waiting to become eligible to apply for a divorce.

Following the constitutional amendment, the Minister for Justice and Equality published the general scheme of the Family Law Bill in July. The Oireachtas Committee on Justice and Equality decided last month that it was not necessary for it to conduct pre-legislative scrutiny of the general scheme.

I will now outline the main provisions of the Bill. Section 1 provides for the Short Title of the Bill and its commencement by order to be made by the Minister for Justice and Equality.

Section 2 provides for the amendment of section 2 of the Judicial Separation and Family Law Reform Act 1989. Section 2(1)(a) amends section 2(1) of the 1989 Act to allow an application for judicial separation to be made after one year living apart, whether or not the respondent spouse consents to the decree of judicial separation being granted. Section 2(1)(e) of the 1989 Act currently provides for a living apart period of three years where the respondent does not consent to the decree of judicial separation being granted. As it would be undesirable to have a longer living apart period for judicial separation applications than for divorce applications, it is proposed that the living apart period in such cases be reduced to one year. This would be consistent with section 2(1)(d) of the 1989 Act, which provides for a living apart period of one year where the respondent consents to the decree of judicial separation being granted. Subsection (1)(c) will clarify the meaning of the "living apart" requirement for judicial separation applications in section 2(3)(a) of the 1989 Act. The Minister and I listened carefully to the comments Deputies made in the debate on the legislation to amend the Constitution regarding issues that can arise when a marriage has broken down and the spouses continue to live in the same house but are in fact living separate lives. We consider that it would be important to provide clarity and legal certainty to the interpretation the Irish courts have given to the living apart requirement. The new text will provide that spouses who live in the same dwelling as each other shall be considered as living apart from each other if the court is satisfied that, while so living in the same dwelling, they do not live together as a couple in an intimate and committed relationship. Section 2(2) is a transitional provision to ensure that the amendments to the 1989 Act will apply to judicial separation proceedings that have been instituted but have not been concluded prior to the date of commencement of section 2.

Section 3 provides for the amendment of section 5 of the Family Law (Divorce) Act 1996. Section 3(1)(a)(i) will reduce the minimum living apart period specified in section 5(1)(a) of the 1996 Act from four years during the previous five years to two years during the previous three years. Section 3(1)(a)(ii) will clarify the meaning of the "living apart" requirement for divorce applications by giving certainty to the interpretation the Irish courts have given to that requirement. As with the new provision for judicial separation, the new provision will make clear that spouses who live in the same dwelling as each other shall be considered as living apart from each other if the court is satisfied that, while so living in the same dwelling, they do not live together as a couple in an intimate and committed relationship. Section 3(2) is a transitional provision to ensure that the amendments to the 1996 Act provided for in subsection (1) will apply to divorce proceedings that have been instituted but have not been concluded prior to the date of commencement of section 3. Deputies will be aware that the general scheme of the Bill included a provision to enable spouses whose judicial separation application is pending before a court to be granted a divorce if they had been living apart for at least two years during the previous three years. However, as this matter is already adequately provided for by section 39 of the Family Law (Divorce) Act 1996, it is not necessary to make specific provision for it in this Bill.

Section 4 provides for the amendment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Section 4(1) will insert a new subsection (1A) into section 110 of the 2010 Act. The new subsection will clarify the meaning of the "living apart" requirement for applications for dissolution of a civil partnership to ensure consistency with the provisions on judicial separation and divorce in sections 2 and 3 of the Bill.

Section 4(2) provides for the amendment of section 172 of the 2010 Act. These amendments are consequential on the amendments to the Family Law (Divorce) Act 1996 provided for in section 3 of the Bill. The background to these provisions is that Part 15 of the 2010 Act established a redress scheme which allows a financially dependent cohabitant to apply to court for certain remedies. Section 172(5) of the 2010 Act defines a "qualified cohabitant" for the purposes of the redress scheme as one of a couple who at the end of the relationship, through death or otherwise, have cohabited for at least five years, or two years where there is a dependent child of the relationship. Section 172(6) makes particular provision for cases in which one or both of the cohabitants is married to another person. That subsection provides that a cohabitant who is married to someone else will not be a qualified cohabitant if he or she has not lived apart from his or her spouse for at least four years during the previous five years. Consideration was given to reducing the living apart period in section 172(6) to two years during the previous three years for consistency with the proposed amendment to section 5 of the Family Law (Divorce) Act 1996. However, a person cannot simultaneously be living with his or her spouse and be a cohabitant as defined in section 172. There could not be a situation in which a married cohabitant would satisfy the cohabitation requirement of section 172(5) without having lived apart from his or her spouse for at least two years. It is therefore proposed to amend section 172(6) in order that it will apply only where the cohabitation relationship concerned ends before the coming into operation of section 4(2) of the Bill. Section 4(2)(b) will amend section 172(6) to provide that the term "lived apart" in that subsection shall be construed in accordance with the new section 5(1A) of the Family Law (Divorce) Act 1996 to be inserted by section 3 of the Bill. Section 4(3) is a transitional provision to ensure that the amendment to the 2010 Act provided for in subsection (1) will apply to proceedings for dissolution of a civil partnership that have been instituted but have not been concluded prior to the date of commencement of the section.

I will now outline the contents of Part 3, which sets out arrangements for the recognition of divorces, legal separations and marriage annulments granted under the law of the United Kingdom in the event of a no-deal Brexit. Part 3 will be brought into operation only if and when the United Kingdom leaves the European Union without an agreement that covers this area of the law. At present, the recognition in Ireland of a divorce, legal separation or marriage annulment obtained in the United Kingdom is governed by EU Council Regulation No. 2201/2003, also known as the Brussels IIA Regulation. Under this regulation, divorces, legal separations and marriage annulments granted in all EU member states, except Denmark, are entitled to recognition in other member states if granted in accordance with the jurisdictional criteria specified in the regulation. Habitual residence is the key governing criterion for recognition. The Domicile and Recognition of Foreign Divorces Act 1986 governs the recognition of a divorce granted in a country outside of the European Union. Section 5 of the 1986 Act provides that a foreign divorce may only be recognised in Ireland if it was granted in the country in which either spouse was domiciled on the date the divorce proceedings were instituted. The determination of "domicile" includes an assessment of the intention of the person to remain indefinitely in the foreign jurisdiction. This has proved complex to determine in some instances. The Government wishes to ensure that in the event of a no-deal Brexit the arrangements for recognition in Ireland of divorces granted in the United Kingdom will continue to be on the basis of habitual residence rather than the domicile provisions of the 1986 Act.

Section 5 makes general provision for Part 3. Section 5(1) defines certain terms for the purposes of Part 3. "Council Regulation" is defined as meaning EU Council Regulation No. 2201/2003. "Relevant jurisdiction" is defined as meaning England and Wales, Scotland, Northern Ireland or Gibraltar. The provisions of Part 3 will need to apply to Gibraltar because the Council regulation extends to that jurisdiction. Section 5(2) provides that section 5 of the Domicile and Recognition of Foreign Divorces Act 1986 shall not apply to a divorce to which section 6 or section 7 applies.

Section 6 provides that a divorce, legal separation or marriage annulment granted under the law of a jurisdiction of the United Kingdom or Gibraltar that, prior to the coming into operation of the section, was recognised under the Council regulation shall continue to be recognised.

Section 7 provides for recognition of divorces, legal separations or marriage annulments granted under the law of a jurisdiction of the United Kingdom or Gibraltar on or after the coming into operation of the section. Section 7(2) sets out the jurisdictional criteria for recognition of such a divorce, legal separation or marriage annulment. The criteria correspond with the jurisdiction requirements of the Council regulation. Section 7(3) sets out the grounds for refusal of recognition of a divorce, legal separation or marriage annulment granted under the law of a relevant jurisdiction. The grounds of refusal correspond with the grounds of refusal of recognition set out in the Council regulation.

The Government hopes that the Bill will be enacted before 31 October in order that, in the event of the United Kingdom leaving the European Union on that date without an agreement, Part 3 can be brought into operation with effect from the withdrawal date. This will ensure a seamless transition from the arrangements under the Council regulation to the recognition arrangements set out in Part 3. For this reason the Government will bring forward a motion in the Seanad to seek the prior concurrence of that House, pursuant to Article 25.2.2° of the Constitution, in a request for early signature of the Bill by the President.

I commend the Bill to the House.

As the Minister of State said, the purpose of this legislation is to give legislative effect to the constitutional amendment voted for by the Irish people in May this year. As the Leas-Cheann Comhairle is aware, the purpose of the amendment was to make a change to Article 41 of the Constitution by removing from it the specific period that required a couple to live apart for four of the previous five years to allow them to get a divorce.

At the outset, it is worth commenting on Article 41 of the Constitution. There is a benefit in having within the Constitution a provision that deals with the family. I am conscious, however, that this article was drafted in 1936 and came into effect in 1937. Notwithstanding that, it has in general withstood the test of time as although the family format envisaged in the Constitution in 1937 is not the format now envisaged, the article is broad enough to encompass the new types of family arrangements that have operated in Ireland, particularly in the past 20 years or so.

Notwithstanding that, there are still parts of Article 41 that are anachronistic and still need to be changed. I particularly refer to Article 41.2, which refers to the role that woman plays "within the home". It is anachronistic and sexist and we need to change it. There were proposals to change it and the preference of the Oireachtas Joint Committee on Justice and Equality, of which I am a member, is to amend the article to recognise the role of carers within the home, irrespective of gender. It is something on which a future Dáil will need to work.

It is worth considering the history to Article 41 and the most controversial part was always the provision precluding divorce. We had a referendum in the 1980s to change that and it was defeated. We then had a referendum in 1995 that only passed by a very small majority. One of the reasons for inserting the provision requiring people to live apart for four of the previous five years was a concern that if it were perceived as being too easy to get a divorce, people would vote against the proposed change. It was a sensible provision to insert for the purpose of getting the amendment passed in 1995 but it was a very cruel and unnecessary provision within Article 41. In effect, it meant people whose marriage had broken down were being compelled to live with each other for four years before they could apply for a divorce. Any fair person would recognise that as cruel. In most cases, unfortunately, when a marital relationship breaks down, no matter the effort put into rehabilitating the marriage by its parties, that rehabilitation is not successful.

When the current Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, put forward the original proposal, the plan was to change the Constitution to expressly provide that people would have to live apart for two of the previous three years. In fairness to the Minister for Justice and Equality, Deputy Charles Flanagan, he subsequently suggested that perhaps we should delete all reference to years within the Constitution and deal with it in a legislative manner. I supported that idea, as did the Fianna Fáil Party, as we thought it a more sensible proposal to have the provision out of the Constitution in order that the Houses of the Oireachtas could determine the appropriate period for people to have lived apart in order for them to be able to seek a divorce. It is important to point out that Article 41, although it has been changed in the way I describe, still contains other requirements within it. For example, there must be no reasonable prospect of a reconciliation between spouses before a divorce is granted and there must be absolute and adequate care and regard for any children of the marriage before divorce is granted. Those fundamental requirements remain.

The Minister of State has outlined the provisions contained in the legislation. People who want a judicial separation in order to get a divorce will need to have lived apart for a year beforehand. For people seeking a divorce, the time required for living apart will be reduced from four years to two years. In respect of civil partnerships, there will also be a requirement to live apart for two years.

It is notable that for divorce, judicial separation or civil partnership acts, the legislation provides that people who are living together can still be regarded as living apart in the marital sense, notwithstanding the fact they are living under the same roof. It is a worthwhile provision. Unfortunately, as a result of the housing crisis in our country, the reality is that very many people whose marriage comes to an end are not in a position to get alternative accommodation or to move out easily and get another house. That is why the provision is important. It indicates that notwithstanding the fact that a couple are living in the same dwelling, they will still be regarded as living apart if they do not "live together as a couple in an intimate and committed relationship". The only caveat is that our legislation now recognises that people can be separated in reality, although they live under the same roof, so I wonder if courts will in future consider when a house is sold by a separated couple that the legislation recognises that people can live separate lives under the same roof. I would be concerned if courts interpreted it in that way. Generally, when there is a separation and ultimately a divorce, either the family home is sold and the proceeds are divided, or alternatively, one party stays in the family home and the other person must get accommodation elsewhere. It is a complicated issue but the provision is worthwhile although I do not know yet how it will be interpreted by the courts.

I thank Deputy O'Callaghan. I am pleased to welcome and support this Bill. On 24 May this year, the referendum, for which I was director of elections for the Fianna Fáil Party, proposed to amend the constitutional provisions on divorce and this was approved by a huge majority, with 82.1% of people in favour and 17.9% against. A very strong message was given to the Government and the Oireachtas by the people of Ireland on the support of the amendment.

As we know, this Bill is designed to implement the results of the referendum by amending several items of legislation to reflect the reduction in time that spouses will need to live apart before they can seek a divorce from four to two years. It is important to say that the referendum result reflected an understanding of the severe burden, both financially and emotionally, that the four-year rule placed on separating couples. In the past, people have been left in legal limbo, with many couples obtaining judicial separations as a precursor to divorce to obtain some type of legal clarity on matters relating to property ownership, pensions etc. in the interim. This of course increases legal costs and practitioners have attested that prolonged litigation often increases hostilities and makes it more difficult for both people involved, as well as for any children resulting from the marriage. It is important that the Bill also includes provisions to allow the recognition of divorces, legal separation and marriage annulments granted in the United Kingdom or Gibraltar in the event of a no-deal Brexit.

This Bill clarifies the definition of a couple living apart to include scenarios where the spouses may be living in the same dwelling but not as a couple in an intimate or committed relationship, which is really important. As my colleague, Deputy O'Callaghan, has noted, in the current housing crisis Members know many people who are technically separated but who, because of financial pressures, cannot afford to leave a house. It is important to recognise this and case law reflects this to be the position adopted by courts on the matter of living apart. The clarity in legislation is very welcome.

Reducing the living apart period will enable couples whose marriages have broken down with no reasonable prospect of reconciliation to regularise their affairs sooner. It is always a tragedy when marriages break down and children must be considered in all this.

A shorter living-apart period will have the potential, as I said, to reduce the legal costs involved, as couples would be less likely to have need to apply for judicial separation or to have to make a formal separation agreement while waiting to become eligible to apply for a divorce. This legislation is certainly welcome. As my colleague has said, there are some things to be teased out but, in general, this is a Bill that we can and will support and we recommend it to the House.

There is not much more to be said on this Bill because the people have spoken. Ultimately, the people are sovereign and they have made their minds up on this issue. My party supported removing Article 41.3.2° from the Constitution and we support the Bill before the House now.

The referendum results on marriage equality, abortion and divorce have taught us that people are often ahead of the politicians on these important social issues and that they want to see social change. Ireland has become a far more tolerant and compassionate society that is prepared to acknowledge the complexities of everyday life. In truth, as with abortion and many other issues that are sometimes complex but which nonetheless impact on people's lives, I do not believe the Constitution was the best place to impose such rigid structures on people's lives on this issue. Our job now is to ensure that this legislation passes through both Houses of the Oireachtas to give certainty to those couples facing into divorce proceedings.

I wish to speak to Deputy Kenny's amendment briefly. First, Sinn Féin will not be supporting it. Ultimately, marriage is a legal contract. As such there are serious matters that must be dealt with when seeking to exit the arrangement. When the contract ends, matters relating to children and property must be dealt with. Often this happens through the legal system. This takes consideration by both parties. It takes time for the legal system to process, not only in the courts but through mediation and the respective legal teams of those involved as well. The process simply takes time. It takes time for the couple as they work through particularly challenging decisions.

Unlike other jurisdictions, Ireland's system of divorce operates on a no-fault basis. We want this no-fault basis system to remain. On that basis, Deputy Kenny's amendment would simply be unworkable, especially for the couples themselves.

There is not much more to be said. We support the Bill. We supported the referendum. This is a positive step forward for the type of transformative change that we need to see in Irish society.

Last May 82% of people voted in favour of changing the timeframe for those applying for a divorce in this country. It is incredible to think that 23 years ago in 1996 the difference between "Yes" and "No" was 9,000 votes. It was incredible. It was a very different Ireland. I am probably showing my age, but I remember campaigning for the "Yes" side. It was a very different Ireland. It was a pivotal moment for those who were in abusive relationships. They had a way out. The people of Ireland spoke and said that people should have a choice.

That change did something else which was more fundamental and its legacy survives to this day. It challenged the Catholic moral conservatism that is in this country. Of course, a person can be Catholic or Christian and so forth, but the straitjacket of that conservatism was finally lifted. That day started a process that challenged the church and the conservatism that we lived under during that period. It changed fundamentally.

I welcome the move to reduce the waiting time from five years to two years but I will speak contrary to that. My amendment would go further and stipulate a six-month period. The reason is that I believe people can make a decision. It is a difficult decision for people when they are in a relationship and it breaks down. It can be complicated. It is not because I believe people should get out of a marriage on a whim - far from it - but as consenting adults I believe they should have the legal right to separate under this procedure. It should not be up to the church, the State or this House to dictate or impose restrictions on a legal divorce involving two consenting adults. That is why I will be pushing my amendment today.

Since no one else is offering I call the Minister of State to conclude.

I wish to thank Deputies for their engagement with the Bill and for their contributions to the debate. As Deputy Cullinane said, the people have spoken and we have all listened. Deputy Fiona O'Loughlin said the same thing and outlined the actual percentage, which was quite high.

At the heart of the Government's proposal to reform the law in this area, with the amendment to Article 41 of the Constitution approved in May and this Bill now, is a desire to ease the burden on people whose marriages have broken down. The minimum living-apart period of four years set out in section 5 of the Family Law (Divorce) Act 1996 means that couples frequently go through the process of a separation agreement or judicial separation before applying for a divorce. Deputy O'Callaghan made the point that this adds to the cost and the stress of an already sad and difficult situation. The Bill seeks to bring clarity to issues that can arise in respect of living apart where a marriage has broken down without the prospect of reconciliation and the spouses have no option but to continue living in the same house. This issue was raised by several Deputies when the constitutional amendment Bill was discussed earlier this year.

The Bill also aims to minimise any negative impact of Brexit on the recognition in Ireland of divorces, legal separations or marriage annulments obtained in the United Kingdom. We should remind ourselves that the provisions of Part 3 will only be brought into operation if the United Kingdom leaves the EU without an agreement that covers this area. We very much hope these provisions will remain uncommenced, but it is necessary and prudent at the same time to include them in the Bill.

Certain matters were raised by Deputies, especially Deputy Gino Kenny. While that matter will be discussed again on Committee Stage I wish to point out that the Government believes the proposed minimum living-apart period of two years is an appropriate period to provide for. There was broad consensus prior to the referendum on reducing the living-apart period to two years and the Government is not in favour of reducing the period further at this time.

The Minister of State has concluded.

I was next. I beg your indulgence. I just wish to say a few words.

It is not my choice. It is a matter of the Order of Business. Can we agree to give the Minster a few minutes?

Thank you very much, a Leas-Cheann Comhairle, I appreciate it.

As director of elections for the referendum campaign I wish to take this opportunity to thank the Opposition parties for their cross-party support for the referendum. I also wish to thank groups such as the Legal Aid Board, the National Women's Council of Ireland, One Family, the Law Society of Ireland, separated.ie, Liberty, the Children's Rights Alliance and the many solicitors and barristers who assisted as well. I also wish to thank Ms Justice Tara Burns, who led the Referendum Commission in providing helpful information that was delivered to all homes in an impartial and factual manner.

I regard the passing of the referendum and this legislation as a huge personal achievement, because when I was first elected I thought long and hard about how I could use my own professional experience as a family law mediator and a lawyer to help make people's lives better. That is why I introduced my Private Members' Bill as expeditiously as I could five months after I was elected on 6 July 2016. I was a member of the minority Government formed in May of that year, but we did not know how long the Government was going to last and, therefore, we had to move quickly.

Is this a call to election?

We did not know whether we would still be here.

Is Leo going to come in next?

I had listened to the concerns of my clients in and out of courtrooms for two decades in practice and I was not going to waste the opportunity. As I said in the Dáil that day, my husband may differ with me, but I believe we have been happily married for 15 years - it is now 17 years. However, I am one of the lucky ones. Marriage is all fine and well when it works, but when it does not it is truly a veritable nightmare. I think it was Jean Paul Sartre who said "L'enfer, c'est les autres." or "Hell is other people." That is particularly true, I imagine, when people are trapped in a bad marriage. I was determined to do something to help.

After all, why are we in Dáil Éireann if not to attempt to alleviate the suffering of others in whatever way we can? I knew that a shorter waiting period within which one could apply for a divorce was badly needed, to take people out of legal limbo with protracted matrimonial litigation and to lessen the emotional and financial costs of marital breakdown.

I am pleased to have instigated this social reform in our country and it represents not just a significant achievement in my own career but of new politics. In a world where politics can be viewed with cynicism, it shows that one person really can make a difference, although it would not have progressed without the support of the Taoiseach, Deputy Varadkar. I thank him and my Cabinet colleagues for their support in bringing forward the referendum in the first instance. I thank the former Taoiseach, Deputy Enda Kenny, and former Minister for Justice and Equality, Frances Fitzgerald, for their support of my original Private Members' Bill. I also have huge gratitude to the current Minister, Deputy Flanagan, and the Minister of State, Deputy Stanton, for all their assistance in delivering the legislation in such an expeditious manner. As I said in the Dáil in 2016, it is time that this Chamber stood up for separated people and, in the spirit of fairness, that we lessen a major unnecessary obstacle to beginning a new chapter in people's lives following marital breakdown. I urge colleagues to support the Bill.

Question put and agreed to.