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INFORMATION BOOKLET ON IRISH DIVORCE REFERENDUM
This document consists of the full text of an information booklet on divorce produced by the Department of Equality and Law Reform, Dublin, Ireland in October 1995.
Here is some background information on the Irish divorce referendum:
Article 41.3.2 of the Irish Constitution of 1937 states:
No law shall be enacted providing for the grant of a dissolution of marriage.
In 1986, a referendum to remove this ban on divorce was defeated . The "Yes" vote was 36.5%.
On Friday 24 November 1995, the Irish People will vote again on a new referendum. The wording of the referendum is summarised under the question "What will be the conditions for divorce?" in the information booklet.
The information booklet produced by the Department of Equality and Law Reform supports the referendum. The Government is also producing a separate document with arguments for and against the referendum. This document may be made available on the internet at a later stage, as may further documents from both sides of the debate.
The full text of the information booklet now follows:
Your Questions Answered
Office of the Minister for Equality and Law Reform
[Address: Dun Aimhirgin, 43 Mespil Road, Dublin 4, Ireland. Tel. +353-1-667 0344]
What is Divorce?
Why is the Government proposing a divorce referendum?
Extent of marriage breakdown
Government support for the family
Conditions for divorce
Social welfare - impact of divorce
Will divorce affect the rate of marriage breakdown?
The Constitutional amendment
Mediation - legal aid
Legal aid - How to apply
Legal aid - how to qualify
Legal aid - cost
Judicial separation and divorce - main difference
Legislation relevant to family law (since 1986)
Law Centres - locations
Q - What is Divorce?
A - Divorce gives legal recognition to the fact that a marriage has irretrievably broken down and no longer exists in anything but name. It gives the right to re-marry to the parties - if they wish to avail of it.
Q - Why is the Government proposing a divorce referendum?
A - During the last decade successive Governments have introduced a series of measures designed to create a legislative framework and support services to deal with marriage breakdown in particular the protection of the rights of children and dependent spouses.
The Constitution and our laws fail to give legal recognition to the position of irretrievable breakdown experienced by large numbers of spouses. We have legal remedies equivalent to divorce in every respect except one - the right to remarry.
Q - What is the extent of marriage breakdown in Ireland today?
A - Over 75,000 people are in marriages that have broken down, and many would like the opportunity to remarry. The Government believes that they should have this right, which is why it is proposing to remove the constitutional ban on divorce.
Q - What is the Government doing to support the family?
A - The Government recognises the Family as fundamental in our society and is committed to legislation designed to help families. The Government has put in place a range of laws and services which are designed to protect families and to minimise the difficulties of marriage breakdown as far as possible.
The Government is setting up a Commission on the Family to advise on family issues in the context of a changing economic and social environment.
Central to the Government's position on divorce is the need to protect the Family and the institution of marriage, while at the same time providing remedies for the increasing numbers of cases of irretrievable breakdown.
In 1995 the Government is providing a sum of IR 750,000 for marriage counselling organisations. Since 1994 the Government has massively increased funding for counselling groups and has assisted in the revitalisation of the whole counselling sector.
Both in 1994 and 1995 the Government has provided IR 300,000 for the Family Mediation Service. That service helps persons who wish to separate to agree the terms of their separation. The funding will also enable the service to expand outside Dublin, with a new office being opened in Limerick. Private mediators will be used in other locations around the country.
The Government has provided IR 6.2 million for legal aid - an increase of 131% on 1992. Staffing in the law centres has doubled since January 1993, and 10 new full-time law centres have opened, with 5 more to come. Eligibility limits for legal aid were increased in 1995.
All this represents real evidence of the Government's firm commitment to provide the necessary support to families, in cases where marriages are undergoing severe problems or have broken down.
Q - What will be the conditions for divorce?
A - Under the terms of the Fifteenth Amendment of the Constitution Bill, 1995, a court may grant a decree of divorce in circumstances where:
(i) at the date of the institution of the proceedings, a couple have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years; (ii) there is no reasonable prospect of a reconciliation; (iii) proper provision having regard to the circumstances exists or will be made for the spouses and any dependent members of the family, and (iv) any other condition prescribed by law has been complied with.
Q - What impact will divorce have on Social Welfare?
A - The Social Welfare (No.2) Act 1995 ensures that no-one will lose out on any social welfare payment as a result of a change in their status from married, separated or deserted to divorced.
Q - What does the Act provide for?
A - The Act provides:
- entitlement to a Widow's or Widower's Pension to divorced people on the death of their former spouse, on like conditions as if the divorce had not been granted. (This applies in cases where a person has been divorced but has not re-married).
- that a divorced woman who would not qualify for a contributory Widow's Pension on the death of her former husband may qualify for Widow's (non-contributory) Pension;
- that a woman who is currently receiving Deserted Wife's Benefit or Deserted Wife's Allowance will on divorce retain entitlement to the Deserted Wife's Benefit and Allowance schemes;
- that a divorced parent will be recognised in Social Welfare legislation:
ooo as a lone parent for the purposes of the Lone Parent's Allowance;
ooo for payment of Family Income Supplement to a divorced person who is supporting his or her former spouse and children;
ooo for payment of an increase for a divorced spouse as an adult dependant.
Q - What impact will divorce have on property rights including the family home and farms?
A - Since 1989, court orders for the transfer of property from one spouse to the other have been possible under the Judicial Separation and Family Law Reform Act. The court must have regard to the contribution made to the home and family by a spouse. This includes non-monetary contributions. The court can also order the sale of the home or give a right to reside in it to one spouse. Corresponding powers in cases of recognised foreign divorce apply under the Family Law Act, 1995, and equivalent powers would also apply on divorce in the event of a "Yes" vote in the referendum.
Q - What impact will divorce have on Maintenance for dependent spouse and children?
A - It will be a condition of obtaining a divorce that proper provision exists or will be made for spouses and children. The courts will have wide powers to make deductions from earnings or to order lump sums and secured maintenance orders. These are already features of existing law in separation proceedings and in cases of recognised foreign divorce (1989 Judicial Separation Act and Family Law Act 1995). There are provisions in the law for international enforcement of maintenance orders (Jurisdiction of Courts Act 1993 and Maintenance Act, 1994).
Q - What impact will divorce have on Pensions?
A - Under the Family Law Act, 1995, courts have powers in separation proceedings and in cases of recognised foreign divorce to ear-mark benefits under a pension scheme for the benefit of a dependent spouse or child. A spouse will be able to apply to split a pension entitlement so as to give a dependent spouse or child an entitlement to a pension in their own right. Corresponding powers would apply on divorce in the event of a "Yes" vote in the referendum.
Q - What impact will divorce have on Tax?
A - Capital Tax exemptions for property transfers between spouses are being extended to property transfers consequent on divorce. Favourable income tax treatment now available to separated couples is being extended to divorced couples. This will continue until the tax year a divorced spouse remarries.
Q - What impact will divorce have on Succession Rights?
A - Once a divorce is granted, the normal succession rights would no longer apply, but two important procedures address the matter.
Firstly, the court will be able to take that into account when it makes financial and property orders in support of a spouse in the divorce proceedings and any time thereafter.
Secondly, courts are being given power to enable a spouse to be provided for out of the estate of the deceased spouse, where it is not possible to make appropriate provision during that spouse's lifetime. This is covered by the Family Law Act, 1995 in cases of recognised foreign divorces and similar provision would apply in the event of a "Yes" vote.
Q - What will happen to the children in a divorce?
A - When a marriage breaks down at present, matters such as custody, visiting rights and arrangements for the education of children are often agreed between the parents and if so agreed, the court will not normally disturb the agreement, if it properly provides for and protects the welfare of children. If a dispute exists about the custody of the children or about access by either parent, then the court will decide on such questions and by law the "paramount consideration" in such cases is the children's welfare. The court may order a report to be made about any issues affecting the welfare of the children. These arrangements would continue to apply if divorce is introduced.
Q - What do studies on children and divorce tell us?
A - Some research findings confirm that some children may be deeply affected by the separation of their parents. The findings show that it is not divorce - the legal recognition of breakdown - which causes the main problems for the children. It is the underlying breakdown itself.
To protect children in marriage breakdown, substantially increased funding has been provided for counselling and mediation. The better we can help parents to manage their conflict, the better the children will do. The overall objective is to try to help parents to resolve their differences or, if they cannot do that, to help them manage their conflict in a way which is least damaging to their children.
Q - Will divorce affect the rate of marriage breakdown?
A - The easy availability of divorce in some countries where the waiting period is a year or even less causes problems because of the "quickie divorce culture" involved. The Government's four-year waiting period is designed to avoid any such problems.
Moreover, divorce rates in countries with a similar family cultural background to our own, like Italy and Spain, are low and there is every reason to assume that our rates would follow their patterns.
Q - Why is the Government putting the basic conditions in the Constitutional Amendment?
A - Putting the wording in the Constitution is an essential guarantee that there will be no easy divorce. Many people want to cater for cases of irretrievable breakdown but to ensure that marriage is protected at the same time. The four years requirement in the Constitution will ensure this.
Q - Is there a necessity for a Government information campaign?
A - The referendum is of major importance. It asks the People to decide on a complex issue affecting very many people's lives. The Government's position is that it has a duty and a responsibility to inform the public about its proposals. It aims to assist voters as best as possible to make an informed decision on the issue. Also, for the first time ever, in a referendum, in the interests of fairness, an Independent Commission has been set up to oversee the preparation and distribution of a leaflet to set out clearly the case for and against divorce.
Q - Will divorce be a burden on the taxpayer?
A - No. The costs which arise on breakdown in terms of social welfare, legal aid, housing and other services are caused by separation itself - not divorce. Irish society has to face these costs at present, whether divorce is introduced or not. The additional costs of changes to the tax and social welfare codes will in fact be modest.
Q - How would the Government help spouses with the costs of divorce proceedings?
A - The Family Mediation Service is available free of charge to assist spouses to agree the terms of their separation. Legal aid would be available for the court proceedings to get a decree of divorce in the same way as for other family law matters such as judicial separation.
Q - Where do I apply for legal aid?
A - There are 19 full-time and 17 part-time law centres throughout the country. The attached list gives details of locations, opening hours, and contact numbers.
Q - How do I qualify for legal aid?
A - If you depend on social welfare payments, you qualify. If you are working, it depends on your "disposable" income - that is, what you have left after certain allowances are made for dependants, rent, mortgage repayments, expenses in travelling to work, hire-purchase repayments and some other outgoings. The Law Centre staff will tell you if you qualify.
Q - How much will legal aid cost?
A - If you depend on social welfare payments, the most it will cost you is IR 4 for advice and IR 23 if you must go to court.
If you are working, the cost depends on the amount of your "disposable" income.
If you have capital resources above a certain value, it may cost you extra. The staff will give you an estimate on a confidential basis.
In cases of severe hardship it can be free.
Q - What is the main difference between judicial separation and divorce?
A - The effect of a decree of judicial separation is that the parties need no longer live together. They remain as husband and wife.
On divorce, the parties are no longer husband and wife and are free to remarry if they wish.
Legislation since the 1986 Referendum relevant to Family Law
1. Domicile and Recognition of Foreign Divorces Act, 1986
Provided for independent domicile of spouses; liberalised rules on recognition of foreign divorces.
2. Status of Children Act, 1987
Removed discrimination in the law between children born within and outside marriage. Put all children on the same footing as regards maintenance and succession rights, regardless of the marital status of their parents.
3. Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988
Provided for recognition and enforcement of civil orders including maintenance orders in the EU.
4. Adoption Act, 1988
Allowed adoption of children whose parents are married in exceptional cases.
5. Family Law Act, 1988
Abolished action for restitution of conjugal rights.
6. Judicial Separation and Family Law Reform Act, 1989
Extended the grounds for obtaining a judicial separation. The courts can order a distribution of the property of the spouses on separation. The courts also have power to order maintenance (including lump sums) for dependent spouses and children. The Act specifically recognises a spouse's work in the home, or in looking after children, as a contribution to be taken into account in making such orders.
7. Children Act, 1989
Made provision for care of children in certain cases.
8. Criminal Law (Rape) (Amendment) Act, 1990
Extended the offence of rape to include marital rape.
9. Child Abduction and Enforcement of Custody Orders Act, 1991
Provided for international co-operation in enforcing child custody.
10. Adoption Act, 1991
Provided for the recognition of foreign adoption orders.
11. Child Care Act, 1991
Comprehensive code on welfare, care and protection of children.
12. Courts Act, 1991
Extended jurisdiction of Circuit and District Courts in family cases; additional judges.
13. Jurisdiction and Enforcement of Judgements Act, 1993
Enforcement of civil orders including maintenance orders in other European jurisdictions.
14. Maintenance Act, 1994
International enforcement of maintenance orders.
15. Social Welfare (No.2) Act, 1995
Ensures that divorced people will not be disadvantaged in terms of their social welfare entitlements,
16. Family Law Act, 1995
Strengthens powers of courts in relation to maintenance and pensions; raises age of marriage to 18; 3-month notice period; new procedure for declarations as to status of a marriage; provides role for welfare service in family cases.
17. Civil Legal Aid Bill, 1995 [Note added 2001 - see now Civil Legal Aid Act 1995 - DW]
Puts legal aid on a statutory basis
18. Domestic Violence Bill, 1995 [Note added 2001 - see now Domestic Violence Act 1996 - DW]
Extends law on domestic violence.
FULL-TIME LAW CENTRES Hours of opening 10 am- 12.30 pm and 2pm - 4 pm County Clare Unit 6A, Merchant's Square, Ennis, Co. Clare. Phone (065) 21929. Fax (065) 21939 County Cork 24 North Mall, Cork. Phone (021) 300 365. Fax (021) 300 307 1A South Mall, Cork. Phone (021) 275 998. Fax (021) 276 927. County Donegal Houston House, Main St., Letterkenny, Co. Donegal. Phone (074) 26177. Fax (074) 26086. County Dublin 45 Lower Gardiner Street, Dublin 1. Phone (01) 878 7295. Fax (01) 874 6896 9 Lower Ormond Quay, Dublin 1. Phone (01) 872 4133. Fax (01) 872 4937 47 Upper Mount St., Dublin 2. Phone (01) 662 3655 Fax (01) 662 3662 Aston House, Aston Place, Dublin 2. Phone (01) 671 2177 / 725 Fax (01) 671 2336 44/49 Main St., Finglas, Dublin 11. Phone (01) 864 0314. Fax (01) 864 0362. Unit 6 Business Centre, Clonsilla Road, Blanchardstown, Dublin 15. Phone (01) 8200455 Fax (01) 820 0450 Tower Centre, Clondalkin, Dublin 22. Phone (01) 457 6011. Fax (01) 457 6007. Village Green, Tallaght, Dublin 24. Phone (01) 451 1519. Fax (01) 451 7989 County Galway 5 Mary Street, Galway. Phone (091) 61650. Fax (091) 638 25. County Kerry 6 High Street, Tralee, Co. Kerry Phone (066) 26900. Fax (066) 23631 County Kilkenny Rose Inn St., Kilkenny. Phone (056) 61611. Fax (056) 61562. County Laois Unit 6A Bridge St., Portlaoise, Co. Laois. Phone (0502) 61366. Fax (0502) 61362. County Limerick Unit F Brian Merriman Place, Lock Quay, Limerick Phone (061) 314 599. Fax (061) 318 330 County Longford Credit Union Courtyard, 50A Main Street, Longford. County Louth The Laurels, Dundalk, Co. Louth. Phone (042) 30448. Fax (042) 30991 County Mayo Humbert Hall, Main St., Castlebar, Co. Mayo Phone (094) 24334. Fax (094) 23721 County Monaghan 14 Church Square, Monaghan Phone (047) 84888. Fax (047) 84879 County Tipperary 19 Pearse Street, Nenagh, Co. Tipperary Phone (067) 34181. Fax (067) 34083 County Sligo 1 Teeling Street, Sligo. Phone (071) 61670. Fax (071) 61681 County Waterford 5 Catherine Street, Waterford Phone (051) 55814. Fax (051) 71237 County Westmeath Northgate St., Athlone, Co. Westmeath Phone (0902) 74694. Fax (0902) 72160 Wexford Unit 8, Redmond Square, Wexford County Wicklow Bridge St., Wicklow Phone (0404) 661 66. Fax (0404) 66197 PART-TIME LAW CENTRES Hours of Opening County Carlow St. Catherine's Social Services Centre, St. Joseph's Rd., Carlow. Phone (0503) 31354. Open on first and third Friday of every month County Cavan Cavan Social Service Day Centre, Cathedral St., Cavan. Phone (043) 47590. Open on second Thursday of every month County Clare Kilrush Community Centre, Toler St., Kilrush. Phone (065) 21929 Open on fourth Wednesday of every month County Cork Health Centre, O'Brien St., Mallow. Phone (022) 21484 Open on fourth Monday of every month County Donegal Donegal District Hospital, Donegal. Phone (074) 26177 Open on first Friday of every month County Dublin Town Hall, The Square, Balbriggan. Phone (01) 878 7295 Open on third Tuesday of every month County Kerry Citizens Information centre, St. Anne's Rd., Killarney. Phone (064) 32297 Open on first Tuesday of every month County Kildare Newbridge Centre for the Unemployed, Lower Eyre St., Newbridge. Phone (045) 32763. Open on first Friday of every month,. County Leitrim North Western Health Board, Leitrim Rd., Carrick-on-Shannon. Phone (043) 47590. Open on first Wednesday of every month County Louth Drogheda Community Services Centre, Fair St., Drogheda. Phone (041) 36084 / 33490 Open on First and second Tuesday of every month County Mayo Ballina Community Centre, Teeling St., Ballina. Phone (094) 24334. Open on first Monday of every month Health Centre, Knock Rd., Ballyhaunis. Phone (091) 61650. Open on fourth Tuesday of every month County Meath Citizens Information centre, Trimgate St., Navan. Phone (01) 820 0455 Open on last Thursday of every month County Offaly Citizens Information Centre, Chapel St., Tullamore. Phone (0502) 61366 Open on first Tuesday of every month County Roscommon Health Centre, The Crescent, Plunkett Ave., Boyle. Phone (071) 61670. Open on first Monday of every month County Tipperary Thurles Community Social Services, Rossa St., Thurles. Phone (067) 34181 Open on Second Tuesday of every month Citizens Information centre, 14 Wellington St., Clonmel. Phone (052) 22267. Open on first, third and fourth Friday of every month. County Wexford Wexford Community Services Centre, St. Bridget's Centre, Roche's Rd., Wexford. Open on first and third Wednesday of every month