Do I have to wait four years to get a divorce?

According to a recent report by Euromonitor International, the divorce rate in Ireland peaked in 2006 at 0.9 divorces per 1,000. During the recession, the rate fell, largely due to the costs associated with getting divorced, but the numbers are on the rise again as the economy recovers. Nonetheless, we still have the lowest rate in the EU, despite having legalised divorce over 20 years ago. The reasons for this are, of course, multifaceted, but many cite the first of Ireland’s three grounds for divorce as being the principal barrier to divorces.

The grounds for divorce under the Family Law (Divorce) Act 1996 are as follows:-

a) 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,

(b) there is no reasonable prospect of a reconciliation between the spouses, and

(c) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family.

The fact that couples in Ireland can only divorce if they have lived separate and apart for four out of the previous five years can be problematic - particularly when economics and the cost of housing comes into the equation. There are, however, exceptions to this decree. Since a landmark ruling in January 2000, in which a couple were living under the same roof but were deemed by the court to be living separate lives, the Irish courts have expanded their definition of what it means to be living apart. In that particular case, M.McA. v X.McA (2000), the husband, having moved out of the family home in 1988, returned to live there three years later, stating that he wanted to develop a better relationship with his children. Mr. Justice McCracken accepted that the couple did not share a bedroom and, indeed, ceased to live as husband and wife. In 1995 and 1996 respectively, the wife and husband became involved in relationships with other people. In 1997, the husband moved out of the family home again. It was these circumstances that led Mr. Justice McCracken to conclude that living together could not be defined solely by the dwelling status of the parties involved, stating, “I do not think one can look solely at where the parties physically reside, or at their mental or intellectual attitude to the marriage. Both of these elements must be considered, and in conjunction with each other.”

So, in theory, if you and your spouse can prove that you have been living apart, regardless of whether or not you share the same address, for four out of the past five years, you should be eligible to apply for divorce.

To certify that you have indeed been living apart, you will be required to complete a Family Law Civil Bill declaring how long you were married for, and how long you have been living apart. You will then be asked under Oath in Court to verify this information.

To speak to a solicitor in our office about your options, please contact Sinead Harrington.

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