Parts I and II of The Family Law Act 2019 commenced on 1 December 2019 and amend The Judicial Separation and Family Law Act, 1989, The Family Law Divorce Act 1996 and The Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010. Part III of the Family Law Act, 2019 which has not yet been commenced, will deal with the effects of a no-deal Brexit, if it occurs, and will deal with the impact of a no-deal Brexit on the recognition of UK divorces and Judicial Separations in Ireland.
The Family Law Act, 2019 makes some significant changes to the rules for getting a divorce decree in Ireland, principally the living apart requirement has been reduced for Divorce Proceedings and the definition of living apart has been clarified in the context of couples who continue to reside under the same roof notwithstanding that the relationship has broken down irretrievably. The law was introduced following the May referendum in which the Government’s proposal to amend Articles 41.3.2 and 41.3.3 of the Constitution to allow the Oireachtas to legislate on the matter was approved by 82.1 per cent of voters.
Living Apart Requirement
- Section 5 of The Family Law Divorce Act, 1996 previously required that prior to initiating any divorce proceedings, the couple must have lived apart from one another for a period of 4 out of the previous 5 years. The Family Law Act, 2019 has reduced this living apart period to two years during the previous three years. The Family Law Act 2019 also provides a new definition of the term ‘living apart’ to give certainty to the interpretation of the term in the Irish courts. It clarifies that spouses who live in the same home as one another are considered to be living apart if the spouses are not living together as a couple in an intimate and committed relationship. The Act also sets out that a relationship does not cease to be an intimate relationship merely because the relationship is no longer sexual in nature. This change in the definition of living apart will make it less challenging for a couple who have separated but who continue to reside under the same roof to obtain a divorce. This change particularly facilitates spouses whose financial circumstances make it difficult or impossible for one spouse to move out of the family home, after a relationship breakdown.
Changes to Judicial Separation
The 2019 Act makes similar changes to the Judicial Separation and Family Law Reform Act 1989 in relation to judicial separation. One of the conditions for a judicial separation was that the couple had to have been living apart for at least three years (where one spouse did not give their consent to the judicial separation). This period has been reduced to one year whether or not both parties agree to the decree being granted. The definition of ‘living apart’ to be used in divorce proceedings will also now apply to judicial separations.
Changes for Co-habitants
The Family Law Act 2019 definition of ‘living apart’ is also applied to dissolving a civil partnership or deciding whether a person is a qualified cohabitant. However, no changes have been made to the necessary period of living apart for people seeking the dissolution of a civil partnership, and it remains two years out of the previous three year in line with the period of living apart necessary for a divorce.
Part III- Continued Recognition of UK Divorces:
Currently, divorces, judicial separations and marriage annulments granted in all parts of the UK (England, Scotland, Wales, Northern Ireland and Gibraltar) are recognised in Ireland by virtue of an EU regulation (Regulation 2201/2003) called Brussels II. In the event of a no deal Brexit, the UK would no longer be covered by EU laws relating to matrimonial matters and UK divorces would no longer be recognised in Ireland without new legislation. The Family Law Act, 2019 includes provisions to ensure, in the event of a no deal Brexit, existing UK divorces, legal separations and marriage annulments will continue to be recognised. However, these will not be recognised if neither spouse was living in the UK when the divorce (or judicial separation or annulment) proceedings were started. In addition, they will not be recognised if the underlying order conflicts with a prior order made in Ireland or another recognised country. These provisions will be brought into operation only if the UK withdraws from the EU without an agreement.
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Marie Conway, Solicitor