Divorce Grounds

Former Prohibition

The Irish courts did not have jurisdiction to grant a divorce until 1996. The Matrimonial Causes Act 1857, which created a possibility of judicial divorce on very narrow grounds, was never extended to Ireland.

When the Irish Free State was formed, there existed the possibility of divorce by private Parliamentary Act. The Irish Free State Oireachtas received three private bills for divorce lodged in 1924 which were withdrawn. Attempts were made to amend Standing Orders to prevent such bills from being presented. No acts of divorce were passed by the Irish Free State Oireachtas.

The Irish Constitution, as adopted in 1937 by the People, provided that “no law shall be enacted providing for the grant of the dissolution of marriage”. Jurisdiction for judicial divorce was introduced in Northern Ireland in 1939.

In the absence of judicial divorce, the Irish courts widened the grounds upon which nullity might be granted. A declaration of nullity might be granted on the basis that the person lacks the requisite capacity to marry. It could be granted by the High Court only.

Non-Fault Based

Fault-based divorce initially existed in the United Kingdom. 1969 legislation introduced grounds which are essentially non-fault in nature, focusing on marital breakdown rather than fault.

The Divorce Reform Act 1969 marked a significant change in that people could end marriages that had “irretrievably broken down” without having to prove fault. They could end marriages after separation of two years if both parties desired a divorce or five years if only one party desired a divorce.

The Matrimonial Causes Act 1973 provided that a marriage had to have lasted for three years before a divorce could be applied for. The Matrimonial and Family Proceedings Act 1984 reduced this period to one year.

Ultimately the legislation enacted after the 1995 divorce referendum allowed for divorce on a similar no-fault basis. There are also fault-based elements which can have a bearing on the ancillary orders that might be made.

1995 Amendment

A referendum was held in 1986 seeking to allow for divorce but was rejected by an almost 2:1 majority. A second referendum held on 24 November 1995 was passed narrowly with 50.28% in favour, 49.72% against.

The 1995 Amendment to the Constitution provided that:

A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that –

1. 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,
2. there is no reasonable prospect of a reconciliation between the spouses,
3.  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
4. any further conditions prescribed by law are complied with.

2019 Amendment

By a further 2019 Constitutional amendment, the first requirement was deleted. At the same time, the government published legislation effectively providing for the grant of a divorce after a separation of two years during the previous three years instead of four years during the previous five years. This provision may accordingly be changed by legislation.

The 2019 Constitutional amendment also provided that laws made by the Oireachtas could provide for the recognition under the law of the State of the dissolution of a marriage granted under the civil law of another state.

The Constitution, as amended in 2019, provides that:

A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that –

1.  there is no reasonable prospect of a reconciliation between the spouses,
2. 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
3.  any further conditions prescribed by law are complied with.

Separation

Under the Constitutional amendment allowing for divorce passed in 1995, a minimum of four years’ separation out of the last five was required. This was amended by further constitutional referendum in 2019, removing the requirement for four years’ separation and replacing it by legislation (not a Constitutional provision) with a requirement for separation of two out of the previous three years. The effect was that the parties might more readily proceed directly to divorce.

Spouses are treated as living apart from each other unless they are living with each other in the same household. It is possible in some circumstances for spouses to be separated where they effectively live in separate households under the same roof. This may occur where there is no joint interaction. There may be a separation of lives. It would not suffice if this is done for commercial or health reasons. There should be an intention to live apart.

Case law provides examples of separation where parties live apart under a single roof. The focus is on the division of households. In some cases, where the parties lived together for the sake of the children, the courts held that they were not living apart. Other cases placed less emphasis on physical separation and more on the psychological and social elements of separation. There is both an objective and subjective aspect.

The Marriage Act 2019 provided 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. A relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature.

Reconciliation

For the grant of divorce, the Constitutional provision and legislation require that there are no reasonable prospects for reconciliation. The court must make this finding. It must be an objective finding. Therefore one party cannot unilaterally refuse divorce on the basis that there is a reasonable prospect of reconciliation from his or her perspective.

In practice, refusal of divorce on this ground would be very rare. The courts have jurisdiction to adjourn proceedings if there is a possibility of reconciliation. However, this requires the consent and engagement of both parties.

It is unlikely that the court would refuse an adjournment if both parties wished to seek reconciliation. Equally, it is unlikely that a court would force an adjournment unless one or both parties consented.

Where there is an adjournment, all written and oral communication between the spouses and their representatives for the purpose of seeking assistance in relation to a reconciliation or an agreement and any record of the same is not admissible as evidence in later court proceedings. This is to incentivise compromise.

Grounds for Divorce

Where, on application to it on that behalf by either of the spouses concerned, the court is satisfied that—

• 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 two years during the previous three years,
• there is no reasonable prospect of a reconciliation between the spouses, and
• such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family,

the court may, in the exercise of the jurisdiction conferred by Article 41.3.2° of the Constitution, grant a decree of divorce in respect of the marriage concerned.

Effect of Decree of Divorce

Where the court grants a decree of divorce, the marriage, the subject of the decree, is thereby dissolved and a party to that marriage may marry again.

The grant of a decree of divorce shall not affect the right of the father and mother of an infant to be guardians of the infant jointly.

There are certain types of matters which require a court order. In these cases, even where the parties agree, two separate court orders may be necessary. This is the position in respect of the dissolution of marriage itself. Orders are also often required in relation to pension adjustments.

Possible Reconciliation or Agreement Applicant

A solicitor acting for the applicant prior to the commencement of the proceedings must:

• discuss with the applicant the possibility of a reconciliation and give to him or her the names and addresses of persons qualified to help to effect a reconciliation between spouses who have become estranged;
• discuss with the applicant the possibility of engaging in mediation to help to effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the applicant and the other spouse; and, give to the applicant the names and addresses of persons who provide a mediation service for spouses who have become estranged and inform the applicant of certain matters in the Mediation Act 2017; and
• discuss with the applicant the possibility (where appropriate) of effecting a separation by means of a deed or agreement in writing executed or made by the applicant and the other spouse and providing for their separation.

Such a solicitor shall also ensure that the applicant is aware of judicial separation as an alternative to divorce where a decree of judicial separation in relation to the applicant and the other spouse is not already in force.

If a solicitor is acting for the applicant, the document by which the proceedings are commenced must be accompanied by a statutory declaration made by the solicitor indicating, if it be the case, that he or she has complied with the above obligations. If it is not so accompanied, the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to engage in the discussions specified  and, if appropriate, to make the applicant aware of judicial separation,

The Minister may make regulations to allow for the establishment of a Register of Professional Organisations whose members are qualified to assist the parties involved in effecting a reconciliation, such register to show the names of members of those organisations and procedures to be put in place for the organisations involved to regularly update the membership lists.

Possible Reconciliation or Agreement Respondent

Equivalent obligations apply to the solicitor for the respondent (the other party, who does not commence the legal proceedings for divorce). The respondent’s solicitor must:

• discuss with the respondent the possibility of a reconciliation and give to him or her the names and addresses of persons qualified to effect a reconciliation between spouses who have become estranged;
• discuss with the respondent the possibility of engaging in mediation to help to effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the respondent and the other spouse, give to the respondent the names and addresses of persons who provide a mediation service for spouses who have become estranged and inform the respondent of certain matters referred to in the Mediation Act; and
• discuss with the respondent the possibility (where appropriate) of effecting a separation by means of a deed or agreement in writing executed or made by the applicant and the other spouse and providing for their separation.

The solicitor shall also ensure that the respondent is aware of judicial separation as an alternative to divorce where a decree of judicial separation is not already in force in relation to the respondent and the other spouse.

If a solicitor is acting for the respondent, the memorandum or other document delivered to the appropriate officer of the court for the purpose of the entry of an appearance by the respondent in proceedings shall be accompanied by a statutory declaration made by the solicitor in relation to the matter. If the document is not so accompanied, the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to engage in the discussions specified and, if appropriate, to make the applicant aware of judicial separation.

Adjournment for Reconciliation or Agreements

Where an application is made to the court for the grant of a decree of divorce, the court shall give consideration to the possibility of a reconciliation between the spouses concerned. Accordingly, it may adjourn the proceedings at any time for the purpose of enabling attempts to be made by the spouses, if they both so wish, to effect such a reconciliation with or without the assistance of a third party.

Where in such proceedings it appears to the court that a reconciliation between the spouses cannot be effected, it may adjourn or further adjourn the proceedings for the purpose of enabling attempts to be made by the spouses, if they both so wish, to reach an agreement, with or without the assistance of a third party, on some or all of the terms of the proposed divorce.

If proceedings are adjourned, either or both of the spouses may at any time request that the hearing of the proceedings be resumed as soon as may be. If such a request is made, the court shall, subject to any other power of the court to adjourn proceedings, resume the hearing.

Where the court adjourns proceedings under this section, it may, at its discretion, advise the spouses concerned to seek the assistance of a third party in relation to the effecting of a reconciliation between the spouses or the reaching of an agreement between them on some or all of the terms of the proposed divorce.

Non-Admissibility

An oral or written communication between either of the spouses concerned and a third party for the purpose of seeking assistance to effect a reconciliation or to reach an agreement between them on some or all of the terms of a separation or a divorce (whether or not made in the presence or with the knowledge of the other spouse), and any record of such a communication, made or caused to be made by either of the spouses concerned or such a third party, shall not be admissible as evidence in any court.