Fifteenth Amendment of the Constitution of Ireland
The Fifteenth Amendment of the Constitution of Ireland removed the constitutional prohibition of divorce, and introduced a limited series of criteria under which it could be legislated for. 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.
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 did not 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.
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.
The government then proceeded to make legislative changes to address the issues identified in that referendum campaign, including the social welfare and pension rights of divorced spouses, which were copper fastened, and the abolition of the status of illegitimacy to remove any distinction between the rights of the children of first and subsequent unions.
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". 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.
|Invalid or blank votes||5,372||0.33|
|Registered voters and turnout||2,628,834||62.15|
During the referendum, government funds were used to advertise in favour of a 'Yes' vote. One week before the referendum, the Green MEP, Ms Patricia McKenna successfully lodged a complaint against the government with the Supreme Court, and the advertising stopped. This Supreme Court decision led to the setting up of the Referendum Commission.
According to the Irish Times, "the polls taken at the time showed that, if anything, the end of the advertising campaign coincided with a halt in the slide of support for divorce". Because of the use of Government funds for one side of the campaign, a petition against the result was lodged by Des Hanafin, a Fianna Fáil Senator and chairman of the Pro Life Campaign, which was dismissed by the High Court on 9 February 1996. 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. President Mary Robinson signed the amendment bill into law three days later.
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 and signed into law on 27 November 1996. 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, 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.
- Coulter, Carol (13 June 1996). "Ten year wait is finally over for those who campaigned for divorce". The Irish Times. Retrieved 6 April 2018.
- Department of Justice (1 October 1992). Marital breakdown: a review and proposed changes (PDF). Official publications. Pl.9104. Dublin: Stationery Office. p. 9, §1.6. Retrieved 11 December 2013.
- "Premier Urges Irish to Vote For Legalizing Of Divorce". New York Times. 20 November 1995. Retrieved 8 November 2013.
- "Referendum Results" (PDF). Department of the Environment, Community and Local Government. Archived from the original (PDF) on 24 December 2014. Retrieved 12 March 2012.
- "Referendum Act, 1994, Section 40". Irish Statute Book. Retrieved 29 April 2015.
- Newman, Christine (15 June 1996). "Result of divorce referendum is formally signed by High Court". The Irish Times. Retrieved 29 April 2015.
- "Family Law (Divorce) Bill, 1996: Second Stage". Dáil Éireann debates. 27 June 1996. Retrieved 29 April 2015.
- "Family Law (Divorce) Act, 1996". Irish Statute Book. Archived from the original on 28 May 2015. Retrieved 29 April 2015.
- "Family Law (Divorce) Act, 1996, Section 1". Irish Statute Book. Retrieved 31 October 2015.
- Shannon, Geoffrey (2011). "Judicial Separation and Divorce; 4.3.5. Case Law". Family Law. Oxford University Press. p. 55. ISBN 9780199589067. Retrieved 31 October 2015.
- Department of Justice (1992). Marital breakdown : a review and proposed changes (PDF). Official publications. Pl.9104. Dublin: Stationery Office. Retrieved 12 May 2017.
- Department of Equality and Law Reform (September 1995). The right to remarry : a Government information paper on the divorce referendum (PDF). Official publications. Pn.1932. Dublin: Stationery Office. Retrieved 12 May 2017.
- Ad-hoc Commission on Referendum Information (October 1995). "Proposed constitutional amendment in relation to divorce : report" (PDF). Dublin. Retrieved 12 May 2017.