Family Law Bill 2019: Second Stage

Question proposed: "That the Bill be now read a Second Time."

I am very pleased to introduce the Family Law Bill 2019 in the House. I acknowledge the expertise and track record of a number of Senators on this issue, especially Senator Bacik, who is here, and I look forward to our discussions on the Bill's provisions. I also note the interest of my colleague, Senator Burke, a long-standing proponent of change in this area.

Senators will recall that the Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Act 2019 was signed into law on 11 June of this year, 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° in respect of foreign divorces. I acknowledge the work of my ministerial colleague, Deputy Madigan, in introducing an initial Private Members' Bill in this area. The effect of the amendment of 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 and that such a period may be defined in law by the Oireachtas.

The amendment has given the Oireachtas the flexibility to legislate to ease the burden on people who have experienced the tragedy of marriage breakdown and wish to have an opportunity 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 this provision is amended by an Act of the Oireachtas. Prior to the referendum, the Government gave a commitment that if the referendum was passed, a Bill would be introduced to reduce the minimum living apart period in the Family Law (Divorce) Act 1996 to two years during the previous three years. Before bringing the proposals to Cabinet, I engaged with colleagues on all sides of the Oireachtas and I greatly value the widespread, cross-party agreement that two years would be an appropriate period to specify in legislation at this time. I recall the consensus being that achieving consensus was an important factor in the success of the referendum proposal when considered by the people of Ireland in May.

Reducing the living apart period will enable couples whose marriages have broken down with no reasonable prospect of reconciliation to regularise their affairs in a more timely manner. 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, I published the general scheme of the Family Law Bill in July. I thank the Joint Committee on Justice and Equality for agreeing that it was not necessary to conduct pre-legislative scrutiny at that level, given the extensive debate that had already taken place in the Houses and among the wider public.

I will briefly outline the main provisions of the Bill. Section 1 provides for the Short Title of the Bill and for 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 Act of 1989 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 Act of 1989 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 Act of 1989, which provides for a living apart period of one year where the respondent consents to the decree of judicial separation being granted. Section 2(1)(c) will clarify the meaning of the "living apart" requirement for judicial separation applications in section 2(3)(a) of the Act of 1989. I carefully listened to the comments made during the discussion of the Bill to amend the Constitution about issues that can arise where a marriage has broken down where the spouses continue to live in the same house but in fact are living separate lives. I consider that the Oireachtas should provide clarity and legal certainty to the interpretation that has been given by Irish courts to the living apart requirement. The new text will provide that spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship.

Section 3 provides for the amendment of section 5 of the Family Law (Divorce) Act 1996. Subsection (1)(a)(i) will reduce the minimum living apart period specified in section 5(1)(a) of the Act of 1996 from four years during the previous five years to two years during the previous three years. Subsection (1)(a)(ii) will clarify the meaning of the "living apart" requirement for divorce applications by giving certainty to the interpretation that has been given by the Irish courts to that requirement. The new provision will make clear that "spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship". Senators 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. Subsection (1) will insert a new subsection (1A) into section 110 of the Act of 2010. 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. Subsection (2) provides for the amendment of section 172 of the Act of 2010. These amendments are consequential on 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 in order to ensure a measure of 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 proposed to amend section 172(6) of the Act of 2010 so that it will apply only where the cohabitation relationship concerned ends before the coming into operation of section 4(2) of this 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.

I turn to Part 3, which sets out arrangements for the recognition of divorces, legal separations and marriage annulments granted under the law of the United Kingdom. This will arise in the event of the United Kingdom withdrawing from the European Union without a deal. 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 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, known as the Brussels IIA Regulation. Under this, divorces, legal separations and marriage annulments granted in all EU member states except for 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 where 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 many 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 UK will continue to be on the basis of habitual residence rather than the domicile provisions in the Act of 1986.

Section 5 makes general provision for Part 3. Subsection (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 the jurisdiction of Gibraltar. Subsection (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.

It is my desire, subject to the wishes of Senators, that this Bill will be enacted before 31 October so 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. I am not sure if this House is sitting next week, that is a matter for the powers that be but, in any event, I hope I will have the co-operation of the House to have the Bill enacted before 31 October so we can ensure we are prepared for a no-deal situation.

All Stages of the Bill will be dealt with today.

I am grateful to Seanadóirí for assisting me in that regard. I value their co-operation because it is important to ensure that, in all cases, we can have a seamless transition from the arrangements under the Council regulation Brussels IIA about which I have been speaking to the arrangements for recognition as set out in Part 3.

I am pleased to report to the House that the Government has brought forward a motion to seek the prior concurrence of the Seanad, pursuant to Article 25.2.2° of the Constitution, in a request for early signature of the Bill by the President. I thank everyone for their co-operation and the consensus that has underpinned all aspects of this important legislation. A few months ago, when we decided to proceed and put this matter to the people, I was keen that we would do so with a large measure of consensus. I firmly believe that, on issues we put to the people and request their assent to change the Constitution, it is better to do so in a consensus manner and that we attempt to reach all-party agreement. That would be inclusive of people with no party affiliation. In that regard, I very much acknowledge the disposition of Senators here which I trust will now continue in the context of the legislation before us and we may well be in a position to proceed through all Stages of the legislation this evening.

In the spirit of what the Minister has just said, I intend to make brief remarks on Second Stage and, with other colleagues, will assist him in facilitating the taking of all Stages of this important legislation.

Ireland has witnessed rapid social change in recent years, We saw the latest instalment of that change in the North yesterday when marriage equality became law and women's healthcare was decriminalised. Yesterday's changes in the North added to the changes which have taken place in this State in the context of marriage equality and women's health. These changes reflect a more compassionate, caring and changing society. I am in no way suggesting that people who are opposed to the changes, especially in the context of women's health, are not compassionate or caring people but the changes underway have the support of the vast majority of the people of Ireland, North and South. That majority must, of course, be mindful to be inclusive of those who remain unconvinced of the need for change and what is required to take place in the time ahead.

The Family Law Bill before the Seanad encapsulates the care and compassion for which people in this State voted and the people of the North who waited for a long, painful time for the changes that took place yesterday. I commend the people and organisations across Ireland that have campaigned for decades to ensure that all of us could be treated with respect and dignity. That day has finally arrived.

There are a number of elements of the Family Law Bill designed to recognise and overcome the difficulties that arise when relationships break down. It reduces to two years the minimum living apart period and makes provision for the recognition of divorces, legal separations and marriage annulments granted under the law in the UK in the event that the UK leaves the EU without an agreement. It gives legal certainty to the courts to grant, under specified circumstances, an application for spouses to apply for judicial separation or divorce. A corresponding provision will deal with the dissolution of civil partnerships. It also reduces to one year the current minimum living apart period of three years that applies to judicial separation applications in cases where the respondent does not consent to the decree of judicial separation being granted.

These are welcome steps forward to help people at very difficult and turbulent times and an emotionally highly charged situation and period in their lives. They will contribute to assisting people where and when that assistance is most needed. Sinn Féin will be supporting the Bill.

I welcome the Minister. I also welcome this Bill, which I will be supporting on behalf of the Labour Senators. Like Senator Ó Donnghaile, I also, on behalf of the Labour party, support the shortened time period for debating the Bill. We have agreed to deal with all Stages today in the interests of getting the legislation through before 31 October, although we all hope that the scenario of a no-deal Brexit will not come to pass. It is a sign of the considerable impact of Brexit on this island that, even in the context of family law legislation, we are concerned with a no-deal scenario.

I am impressed by the level of detail in Part 3 in the context of to issues relating to Gibraltar and Denmark and noting the different issues that arise when divorces are granted in those countries. A significant amount of work has clearly gone into ensuring that all eventualities are covered in the event of a no-deal Brexit on 31 October. The Labour Party is supportive of that aspect of the Bill.

I also support the more general principle behind the Bill. I note the strong history of the Labour Party in moving towards progressive reform on divorce and the provision of laws around the dissolution of marriage in Ireland. It is interesting to reflect on the controversial history of divorce law in Ireland at a point when it is now so uncontroversial that there are so few people present in this Chamber.

I ask the Senator not to remind me of the controversial history.

I do not need to remind the Minister. The Labour Party pushed for a divorce referendum in 1986. That referendum was held but, sadly, failed.. There was such an impact on many people whose marriages had broken down and who were denied the possibility of remarrying until, finally, the right to remarry campaign and Divorce Action Group succeeded in getting the referendum passed in November 1995. That referendum was also held largely at the instigation of the Labour Party, which was then in a rainbow coalition with Fine Gael and the Democratic Left. I was too young to be involved in the 1986 campaign but the 1995 referendum was passed by a very narrow majority of 9,114 votes. That margin was so tight and the campaign so bitterly contested that it is very interesting to see how far we have come in the years since.

The referendum on 24 May this year on the thirty-eighth amendment to the Constitution was initiated by the Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, to whom I wish to pay tribute for providing the momentum for this reform. That referendum was passed with a majority of 82%. There was clearly an appetite for moving towards reform of divorce law and a growing recognition that the provision that had been put into the Constitution in 1995 by a very narrow majority which required couples to have lived apart for four out of the previous five years was too restrictive and was causing serious and unnecessary obstacles to couples who had already faced the tragic circumstance of a marriage breakdown.

The mandatory four-year period was one of the longest in the world. It had the effect of forcing couples into a cumbersome two-stream legal procedure where they had to seek a judicial separation to regularise their situation following marriage breakdown, but then still had to wait for the four years to pass before they could seek a divorce, even where they had formed new relationships in the meantime and wished to achieve legal recognition for those.

We are all well aware of the compassionate and practical reasons this referendum was so important and we were also all aware at the time that despite the dire predictions around the 1995 referendum, the Irish divorce rate had remained low at 0.7% when I looked at it. That was one of the lowest rates in Europe, where the average was 1.9%. Marriage rates have remained strong, and since the 2015 marriage equality referendum, gay couples have the right to marry too. Like Senator Ó Donnghaile, I am delighted to note and acknowledge the change in the law in Northern Ireland as of this week to ensure marriage equality will be recognised there from January 2020. It is an important and momentous reform for Northern Ireland.

I am glad we are moving ahead with reforms and I support them. I am particularly glad to see the clarification being inserted into this legislation in recognition of the jurisprudence on the area of living apart to clarify that, as the Minister said in his speech and as is in the legislation, "spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship". That reflects the case law on both separation and divorce. I am glad to see that and to see the provisions around recognition of foreign marriages. That is also another important part of this legislation. I support the legislation and will support its speedy passage.

I welcome the Minister to the House and thank him for bringing forward this Bill. The issue has already been decided in the referendum and the necessary changes have been made. In looking back at my involvement in the court process, I remember my first family law case, which was not that long ago. The judge kept adjourning the matter and would not deal with it. This is not a criticism of the judge, who has passed away since, but of the approach. For seven days in a row the case kept being adjourned until the final day of the term. A decision was given on dealing with the sale of a property. The issue at the time was that family law was not even being dealt with by the courts. The other recollection I have is of dealing with an annulment case where it was far easier to get a church annulment at the time than it was to get a State annulment. I spent six days in the High Court on a State annulment case where a former President, who was then a senior counsel, was a senior counsel on the other side. Every issue and part of that case was contested. Those were the complications of family law. It was extremely expensive and difficult. Unfortunately, the annulment process was one of the only processes available. Even though it was difficult, we were successful in this case and subsequently we were successful in the Supreme Court as well, but I mention the sheer difficulties people had.

There was no law really dealing with this matter. Looking at it in real terms, it was the former Deputy Shatter who brought forward the first family law Bill in 1976. Looking at it now, the real legislation in the area that we are amending now was brought forward in 1989, again by the former Deputy Shatter, and that was brought forward as a Private Member's Bill rather than as a Government Bill. We are now dealing with it as a Government Bill, and rightly so, to amend that Act of more than 30 years ago. It is interesting how it was a Private Member's Bill that started off this process. It is important we acknowledge the contribution of the Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, in bringing forward the Bill and the subsequent amendment.

It is important that we regularise this issue and that where we cater for where all the evidence is. This Bill also defines the issue of living apart. Circumstances have changed in this area. We had the economic downturn where people could not physically afford to move into separate accommodation. This Bill is dealing with that issue as well, and that is a welcome development. The changes are welcome. The people have spoken on this and given their decision. It is our job to bring forward the legislation, to put it in place and to give effect to it. It is also important to acknowledge that we also need to cater for where there is a no-deal Brexit scenario. We need to plan carefully so we do not end up in the legal complications that occurred previously. Before the divorce legislation was introduced here, it was not unusual for people to apply for divorce in the UK, causing a lot of legal complications, especially where one of the parties subsequently died, as that raised questions on whether that divorce was valid or should be validly recognised, which caused problems in the distribution of the estate.

I thank the Minister, the Department and all the people involved in bringing forward this Bill. This legislation deals with all those issues. It is a complex area. I am involved in a family law matter that has been going on for 18 years. Unfortunately, it is not straightforward. Therefore, it is important that when we bring legislation forward, we try to cover all the complexities and difficulties that arise so that judges and the Judiciary can deal with the decisions and can make a decision that accommodates the best way forward for the people involved.

I welcome this Bill. It is important we get it through. That is why this House is supporting that all Stages would be dealt with today.

I thank Seanadóirí for their positive comments. I noted the Acting Chairman's intervention to the effect that it is the disposition of Senators to proceed and take all Stages. With that in mind, and not wishing to delay the House, if we could record the consensus of the House at having arrived at the conclusion of Second Stage, with the Acting Chairman's permission perhaps we could move on to the other Stages of the Bill.

Question put and agreed to.

When is it proposed to take Committee Stage?