Keith Walsh is a family law solicitor and author of Divorce and Judicial Separation Proceedings in the Circuit Court:A Guide to Order 59 published by Bloomsbury Professional in 2019. He is the immediate past chairman of the Law Society’s Family and Child Law Committee.

WAIT FOR REDUCED WAITING TIME FOR DIVORCE IS OVER BUT NEW FAMILY LAW ACT 2019 DOES MORE THAN JUST REDUCE WAITING TIME

Parts I and II of the Family Law Act 2019 commenced on 1st December 2019. Part III Recognition of UK divorces not commenced.

The Family Law Act 2019 gives practical effect to the referendum held on 24 May, in which the people voted to amend the Constitution to remove from article 41.3.2 of the Constitution the minimum living-apart period for spouses seeking a divorce; and to replace the text of article 41.3.3 on foreign divorces.

Parts I and II of the Family Law Act 2019 which were commenced on 1st December 2019 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 which is not commenced provides for the recognition of divorces, legal separations and marriage annulments granted under the law of Northern Ireland, Scotland, England and Wales, and Gibraltar, in the event that the UK withdraws from the EU without an agreement that applies to this area of law. This latter Part mirrors the provisions of Brussels II.

The principal effect of the act is that the living-apart requirement has been reduced for divorce proceedings, and the definition of living apart has been clarified for those spouses living under the same roof, for both divorce and civil-partnership actions, as follows:

Living apart period pre Divorce reduced from four to two years

The living apart requirement for couples required before initiating divorce proceedings will be reduced by amending section 5 of the Family Law (Divorce) Act 1996 to reduce the minimum living apart period specified in that act to two years during the previous three years (reduced from four during the previous five years).

‘Living apart’ clarified

The phrase ‘living apart’ is clarified in the context of spouses who still live under the same roof and they will 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. This change in the definition of living apart will make it easier for couples residing together, though living apart, to apply for divorce. Section 3.1(b) of the 2019 act states that a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature. These amendments will apply to proceedings for the grant of a decree of divorce under the act of 1996 (a) that are instituted on or after the date section 3 of the Family Law Act 2019 comes into operation- 1st December 2019, or (b) that have been instituted, and have not been concluded, prior to such date.

‘Intimate and committee relationship’

The phrase intimate and committed relationship was used in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 when defining a cohabitant in section 172(1) as one of two adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship. This phrase was analysed in detail by Baker J in DC v DR [2015] IEHC 309, paragraph 83 and following). McA v McA [2000] 1 IR 457, the leading case on living apart before the change to the 2019 act, may still be relevant, as McCracken J analysed the concept of living apart.

Judicial separation changes

There are changes to the grounds for a decree of judicial separation. There has been a harmonisation of the concept of ‘living apart’ as a ground for judicial separation, as well as divorce. The phrase ‘in an intimate and committed relationship’ has been imported into section 2 of the 1989 act by section 2.1(c) of the 2019 act.
The 2019 act reduces to one year the 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 (see section 2.1(e) of the 1989 act). This change will apply to proceedings for the grant of a decree of judicial separation under the act of 1989 that: (a) are instituted on or after the date this section of the 2019 act comes into operation [1st December 2019], or (b) to proceedings that have been instituted, and have not been concluded, prior to such date. This change may allow the one year no-fault, living-apart period to overtake the current default ground for a decree of judicial separation 2.1(f) that the marriage has broken down, to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application.

Changes for Cohabitants

The reduced living-apart time period [2 instead of 4 years] criteria for divorce is reflected by a change to the criteria permitting a person to be considered as a qualified cohabitant by amending section 172(6) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. A person may still be a qualified cohabitant if either cohabitant is married to another person, provided they were living apart for two of the previous three years. This reduces the pre-existing requirement in line with the reduction in the living apart requirement for divorce from four of the previous five years to two of the previous three years.  The relationship must not have ended before the coming into operation of section 4(2) of the Family Law Act 2019.

A similar provision clarifies the term ‘living apart’ in the same way as when dealing with dissolution of civil partnerships. This change will only apply to proceedings for the grant of a decree of dissolution of a civil partnership that: (a) are instituted on or after the date section 4 of the Family Law Act 2019  comes into operation, or (b) have been instituted, and have not been concluded, prior to such date.

Part III – not yet commenced - Recognition of UK divorces

This Part provides for the recognition of divorces, legal separations and marriage annulments granted under the law of Northern Ireland, Scotland, England and Wales, and Gibraltar, in the event that the UK withdraws from the EU without an agreement that applies to this area of law.

Recognition of certain divorces, legal separations and marriage annulments granted in the UK or Gibraltar before coming into operation of section 6 of the Family Law Act 2019: A divorce, legal separation or marriage annulment granted under the law of ( the UK or Gibraltar that, prior to the coming into operation of this section, was recognised under Brussels II, will continue to be recognised.

Recognition of certain divorces, legal separations, and marriage annulments granted in the UK or Gibraltar after coming into operation of section 7 of the Family Law Act 2019 : a divorce, legal separation or marriage will be recognised if, at the date of the institution of the proceedings relating to the divorce, legal separation or marriage annulment concerned, at least one of the following requirements is satisfied:

(a) The spouses were habitually resident in a relevant jurisdiction (which is defined as being the UK or Gibraltar),

(b) The spouses were last habitually resident in a relevant jurisdiction, insofar as one of them still resided there,

(c) The respondent was habitually resident in a relevant jurisdiction,

(d) The applicant (i) was habitually resident in a relevant jurisdiction, and (ii) had resided there for at least a year immediately prior to that date,

(e) Either of the spouses was domiciled in a relevant jurisdiction.

A divorce, legal separation or marriage annulment from the UK and Gibraltar will not be recognised if: 

(a) Such recognition is manifestly contrary to public policy,

(b) Where the judgment in the proceedings relating to the divorce, legal separation or marriage annulment concerned (‘the relevant judgment’) was given in default of appearance, if the respondent was not served with the document that instituted the proceedings, or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defence, unless it was determined that the respondent had accepted the judgment unequivocally,

(c) The relevant judgment is irreconcilable with a judgment given in proceedings between the same parties in the State, or

(d) The relevant judgment is irreconcilable with an earlier judgment given in a state other than the State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the State.

The changes to practice and procedures introduced by the Family Law Act 2019 will make a very significant difference to the practice of family law and bring much needed reform.

Keith Walsh