Fifteenth Amendment of the Constitution of Ireland

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The Fifteenth Amendment of the Constitution of Ireland removed the constitutional prohibition of divorce. It was effected by the Fifteenth Amendment of the Constitution Act, 1995, which was approved by referendum on 24 November 1995 and signed into law on 17 June 1996.

Changes to the text

  • Deletion of the entirety of Article 41.3.2:
No law shall be enacted providing for the grant of a dissolution of marriage.
  • Substitution of new Article 41.3.2:
A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that—
i. 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,
ii. there is no reasonable prospect of a reconciliation between the spouses,
iii. 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
iv. any further conditions prescribed by law are complied with.

Overview

An absolute ban on divorce had been present in the constitution since its adoption in 1937. The prohibition reflected the religious values of the document's Roman Catholic drafters, but was also supported by senior members of the Anglican Church of Ireland. In the 1930s some other nations had similar bans, such as Italy, which didn't repeal their bans until the 1970s. By the 1980s, however, many[who?] saw the prohibition on divorce as illiberal or as discriminating against those who did not share the Christian attitude towards divorce.[citation needed]

The first attempt to remove the ban on divorce was the 1986 divorce referendum, held by the Fine Gael government of Garret FitzGerald. However, the proposal was rejected by voters by a substantial margin, over 25 percent. Shortly before its collapse, the 1989–92 government published a white paper on marriage breakdown, which proposed "to have a referendum on divorce after a full debate on the complex issues involved and following the enactment of other legislative proposals in the area of family law".[1] When Fine Gael returned to government in 1994 under John Bruton an amendment bill was introduced and, after much controversy and public debate, the referendum was ultimately carried by a very slim margin, just over 0.5 percent. The Fifteenth Amendment altered Article 41.3 of the constitution, which provides for a number of fundamental rights of the family. The amendment removed the absolute prohibition on divorce but imposed a number of restrictions on its occurrence. The Catholic Church was strongly against the amendment, but stated that Catholics could vote for the amendment in good conscience, and that it would not be a sin to do so.[2]

Result

Fifteenth Amendment of the Constitution of Ireland referendum[3]
Choice Votes  %
Referendum passed Yes 818,842 50.28
No 809,728 49.72
Valid votes 1,628,570 99.67
Invalid or blank votes 5,372 0.33
Total votes 1,633,942 100.00
Registered voters and turnout 2,628,834 62.15

Court challenge

The returning officer submitted a provisional certificate of the result of the referendum in the High Court as required by the Referendum Act, 1994.[4][5] A petition against the result was lodged by Des Hanafin, a Senator and Fianna Fáil member, which was dismissed by the High Court on 9 February 1996.[5] Hanafin appealed to the Supreme Court, which in June upheld the High Court decision. The High Court then endorsed the provisional certificate on 14 June 1996.[5] President Mary Robinson signed the amendment bill into law three days later.

Subsequent legislation

Before the referendum, a draft Family Law (Divorce) Bill was published to illustrate how the Constitutional provisions would be implemented if the amendment were passed. Once the Constitutional amendment came into force, the divorce bill was introduced in the Oireachtas on 27 June 1996[6] and signed into law on 27 November 1996.[7] This gave effect in primary legislation to the new Constitutional provisions. Although this act, the Family Law (Divorce) Act, 1996, specified its own commencement date as 27 February 1997,[8] the first divorce was granted on 17 January 1997, based solely on the constitutional amendment, to a dying man who wanted urgently to marry his new partner.[9]

See also

References

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External links

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