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Cashel - 062-61288 | Cahir 052-7441244 law@dtryan.ie

Divorce was first introduced to Ireland in 1996, and the criteria for divorce were set out in the Constitution and replicated in the Family law (Divorce) Act 1996. It was necessary for the Circuit or High Court to be satisfied that the parties were at the date of commencement of proceedings,” living apart” for at least four of the previous five years; there was no reasonable prospect of reconciliation between the parties, and proper provision was in place for the parties and the dependant children.

As the original legislation provided no guidance as to what constitutes “living apart”, it fell to the Courts to interpret this phase. There are no two marriages the same, and no two marriage breakdowns are the same.

The question was soon posed to the Court was whether parties living in the same house could be deemed to be “living apart”?. The test developed in the McA case, was a mixed test, it comprised of  an objective test  – did it look from the outside that the parties were no longer together and a subjective test, did the parties themselves form the intention that the marriage was over.

 In simple language  – were the parties living like lodgers and detached from each other? In order to satisfy themselves, Judges often enquired as the specific domestic arrangements for eating and laundry.

During the recession from 2008 – 2014, mainly for economic reasons parties found themselves when their marriage broke down, having to continue to reside in the same property as they could not afford to move into separate accommodation.  

In the May 2019 Constitutional referendum, 82.1% of those that voted, chose to remove the four year  period from the Constitution, and to allow the Oireachtas to pass legislation setting the time period.  On the 25th October 2019, the President signed into law the Family Law Act 2019.

Not only did the law introduce the reduced two year period, but now specifically provides reference for spouses living in the same dwelling and states that spouses “shall 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” and goes on to reflect as is included in the Civil Partnership and Certain Obligations of Cohabitant’s Act 2019, that a “a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature”.

This clarification is welcomed, but I believe that in reality because of the reduced two year period and the economic improvement in the Country that the necessity for parties to continue living under the same roof will diminish.

The Family Law Act 2019, is not yet in force and awaits a commencement notice from the Minister for Justice. This is expected in January 2020.

If you have any queries on family law matters, do not hesitate to contact Máire McMahon Partner in Donal T Ryan Cahir at 052 7441244.