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Divorce referendum: What are we voting on?

Learn more about what we are being asked to vote on in the upcoming Divorce referendum in Ireland

Written by SpunOut | View this authors Twitter page and posted in news

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On 24 May 2019, Irish citizens will go to the polls to vote on the issue of divorce in the Irish Constitution. The referendum will be held on the same day as the local and European elections.

A change to the constitution can only be made by referendum. It is not possible to add or remove anything from the constitution in Ireland without a referendum.

The history of divorce in Ireland

When the Irish Constitution was first created, it did not allow divorce in Ireland.

In 1995, a referendum was passed to remove the ban on divorce from the Constitution, allowing the courts to grant a divorce if the following conditions were met:

  1. The couple seeking a divorce must have been living apart for at least four out of the last five years, but this four year period does not need to be continuous.
  2. It is unlikely that the couple will reunite.
  3. A plan has been or will be put in place to make sure that both people and their children and other dependents will have financial support.

After this referendum passed, the Oireachtas (made up of the Dáil, Seanad and President) passed the Family Law (Divorce) Act 1996 to put this change to the Constitution into effect, including the minimum four-year separation period.

Foreign divorces

At present, if a person got divorced in a foreign country, and their foreign divorce is not recognised under Irish law, the Constitution does not allow this person to remarry in Ireland while their ex-spouse is still alive.

Not all foreign divorces are recognised. Whether or not your foreign divorce will be recognised depends on when and where you got your divorce. The rules around the recognition of foreign divorces are complex. Although the Constitution does not lay down all of the rules around foreign divorce, it does limit how much these rules can be expanded on.

What does the divorce referendum propose to change?

On 24 May 2019, you will be asked to vote on two proposed changes to Article 41.3, the section that deals with divorce:

  1. Remove the section that requires couples to be living apart for four out of the last five years. This section would not be replaced by anything.
  2. Replace the section that prevents people with foreign divorces from remarrying in Ireland, and replacing with with the following text:

“Provision may be made by law for the recognition under the law of the State of a dissolution of marriage granted under the civil law of another state.”

This will recognise that the Oireachtas has the power to decide which foreign divorces will be recognised by law. It does not mean that all foreign divorces are now recognised - it simply clarifies that this decision can be made by lawmakers in the Oireachtas.

What does a Yes vote mean?

A Yes vote would mean that the minimum four-year separation requirement would be removed from the Constitution. However, it's important to remember that things will not change immediately - the government would need to introduce new laws in order for these changes to come into effect. After the 1995 referendum passed, the four-year separation period was made law in the Family Law (Divorce) Act 1996. This means that the separation period will still be in place until the Oireachtas creates a new law. This new law may include a minimum separation period, but they are no longer bound by the Constitution to make this period four years.

A Yes vote would also mean that the Constitution recognises that the Oireachtas has the power to decide which foreign divorces are recognised. This would give the Oireachtas freedom that it does not currently have to expand on the range of foreign divorces which are recognised under Irish law.

What does a No vote mean?

A No vote would mean that Article 41.3 of the Constitution would stay the same. The minimum four-year separation period would stay in place, and the Constitution will still state that a person who has a foreign divorce not recognised under Irish law cannot remarry while their ex-spouse is still alive.

The existing restrictions on the ability of the Oireachtas to expand on the range of foreign divorces which are recognised under Irish law would also remain the same.

For more information visit the Referendum Commission website.

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Published May 21st2019
Tags divorce referendum referendum LE19
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