(July 7, 2010) Ireland has declined to take part in a European Union plan for enhanced cooperation in divorce cases. The proposed scheme has been agreed upon by 14 Member States implementing, for the first time, rules contained in the Lisbon Treaty allowing core countries to proceed in an initiative without all Member States taking part. In the case of divorce, this would allow couples from two different states (referred to as “international couples”) to decide which country’s law to apply should they choose to divorce. This would stop the practice of “divorce shopping,” which can occur when each party races to lodge an application in the country that would yield the most advantageous result for them. Under the new plan, if the couple is unable to agree upon which country’s laws to apply, judges will decide by common rules which legal code to follow. The countries taking part are Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Slovenia, Spain, and Romania. (Iona Institute for Religion and Society, Ireland Opts-Out of EU Divorce Plan, (June 8, 2010), http://www.ionainstitute.ie/index.php?id=832.)
Background of Divorce in Ireland
Ireland has traditionally been hostile to divorce and by 1995 was the only country in the EU to forbid civil divorce. Article 41.3.2 of the 1937 Irish Constitution stated that, “[n]o law shall be enacted providing for the grant of a dissolution of marriage.” (AMOS J. PEASLEE, Constitution of Ireland (December 29, 1937), CONSTITUTIONS OF NATIONS 260 (1950), World Constitutions Illustrated database, HEINONLINE, available at http://heinonline.org/HOL/Page?handle=hein.beal/connat0002&id=1&
size=2&collection=cow&index=beal/connat#270 (last visited July 2, 2010).) In 1986, a referendum to remove the ban on divorce was voted down by almost two to one. In 1987, a challenge to the constitutional ban was dismissed by the European Court in the case of Johnston v Ireland. (Decision of 18 December 1986, Series A, no. 112, European Court of Human Rights, http://cmiskp.echr.coe.int/tkp197/view.asp?
skin=hudoc-en (last visited July 1, 2010).)
With public opinion on the issue shifting, the government held a second referendum on the ban in 1995. This passed by 818,842 votes to 809,728, after a recount, bringing about the 15th Amendment to the Constitution, which replaced article 41.3.2. (Kieran Wood & Paul O’Shea, DIVORCE IN IRELAND 10-15 (1997).) Irish courts may now grant a dissolution of marriage without proof of fault or incapacity, but only when the spouses have lived apart from each other for at least four years. The parties must also show that there is no reasonable prospect of reconciliation and that adequate provisions have been made for any children. (Ir. CONST., 1937, Department of the Taoiseach, http://www.taoiseach.gov.ie/upload/static/256.htm (last visited July 1, 2010).) February 1997 saw the Family Law (Divorce) Act, 1996 come into effect, setting out the practical aspects of decrees of divorce from the Circuit or High Court. (Family Law (Divorce) Act, 1996, IRISH STATUTE BOOK, http://www.irishstatutebook.ie/1996/en/act/pub/0033/index.html (last visited July 1, 2010).)
Irish Views on Rejection of the EU Plan
After meeting with EU ministers in Luxembourg, the Minister for Justice, Dermot Ahern, summed up the Irish Government’s rejection of the new divorce plan (sometimes referred to as “harmonization” even though the participating Members States will continue to have their own separate divorce laws), stating, “[t]he fact that we had a referendum and had legislation strictly based on the referendum that the people voted on, I don’t think we can change that unless we have another referendum, obviously.” (Iona Institute, supra.) Ahern was also concerned with other countries’ liberal divorce procedures, saying, “[i]f we were to participate in this, it would mean that we would have to implement foreign divorce laws in our own courts and that’s not something I think we want.” (Arthur Beesley, Ireland Opts Out of Scheme to Harmonise Divorce Laws, THE IRISH TIMES (June 5, 2010), http://www.irishtimes.com/newspaper/world/2010/0605/1224271913072.html.)
Leinster MEP Nessa Childers has lodged her support for the scheme, despite the remaining “sensitivities” toward divorce in Ireland. Urging the government to consider joining the directive, Childers stated:
Anyone who has gone through a marriage breakdown would be in favor of minimizing the conflict between international couples by harmonizing divorce law across Europe. Cross-border divorce can be very damaging, especially for children, with awful tug-of-war situations developing as families are split between different countries. (Cross-Border Divorce Made Simpler, But Not in Ireland, OFFALY EXPRESS (June 16, 2010), http://www.offalyexpress.ie/eurolink.)
The Plan and Other Member States
Countries such as Sweden are also rejecting the proposal, albeit with different concerns. The Stockholm News reports that the Swedish resistance is based on the protection of their liberal divorce law, which may be impinged upon by harsher foreign laws requiring, for example, proof of trouble within the marriage. (Mats Öhlén, Sweden Says No to New EU Divorce-Policy, STOCKHOLM NEWS (June 4, 2010), http://www.stockholmnews.com/more.aspx?NID=5427.)
For the citizens of the Member States taking part, harmonized divorced laws may lessen the upset of a divorce for spouses and children, which might otherwise be drawn out by legal ambiguity. EU Justice Commissioner Reding has stated that she “will work with all Member States to ensure that as many of them as possible will in the end participate in this initiative. The more Member States join, the greater the legal certainty will be for international couples in Europe.” (Press Release, EU Justice Council: Statement by Vice-President Viviane Reding (June 4, 2010), http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/236&
In 2007, 140,000 (13%) of divorces in the 27 Member States of the EU had an international element. (Malta Participates in EU Cross-Border Divorce Proposal, GOZO NEWS.COM (June 7, 2010), http://gozonews.com/13677/malta-participates-in-eu-cross-border-divorce-
proposal/.) While Ireland may not wish to compromise its position on divorce at the present time, it remains to be seen how many other Member States will proceed in this historic endeavor involving enhanced cooperation and EU policy.
–Prepared by Sharon Hickey, summer intern at the Law Library of Congress, under the guidance of Stephen Clarke, Senior Foriegn Law Specialist. Ms. Hickey, a second year Law and Arts student at the National University of Ireland, Maynooth, is a participant
in the Washington-Ireland Program.