Family Law Briefing - Issue One

Family Law Act 2019

 

Introduction:

Parts I and II of the Family Law Act 2019 commenced on 1st December 2019. Part III -Recognition of certain divorces, legal separations and marriage annulments relating to UK and Gibraltar divorces is not yet commenced.

The Family Law Act 2019 gives practical effect to the referendum held on 24 May 2019, in which the people of the Republic of Ireland voted to amend the Constitution to remove from article 41.3.2 of the Constitution the minimum living-apart period for spouses seeking a divorce; and to replace the text of article 41.3.3 on foreign divorces.

Parts I and II of the Family Law Act 2019 which were commenced on 1st December 2019 by S.I. no. 585/2019 amend the Judicial Separation and Family Law Act, 1989, the Family Law (Divorce) Act, 1996 and the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010. 

Part III which is not commenced provides for the recognition of divorces, legal separations and marriage annulments granted under the law of Northern Ireland, Scotland, England and Wales, and Gibraltar, in the event that the UK withdraws from the EU without an agreement that applies to this area of law. This latter Part is similar but slightly different to the provisions of article 3 of Brussels II bis- Council Regulation (EC) No 2201/2003.

 

The principal effects of the act are:

  1. To reduce the requirement for spouses to live apart prior to the institution of divorce proceedings from four (of the preceding five) years to two (of the preceding three) years.
  2. To clarify and harmonise the definition of living apart for:
  3. spouses living under the same roof in the case of divorce and judicial separation proceedings and
  4. for civil partners living under the same roof in proceedings for the dissolution of civil partnership actions.
  5. To change one of the possible grounds for judicial separation by reducing the period of living apart from 3 years to 1 year where the Respondent does not consent to the decree sought, by amending s 2(1)(d)  (and deleting paragraph 2(1)(e)) of the Judicial Separation and Family Law Reform Act 1989.
  6. When Part III is commenced, to make provision, in the event of the withdrawal of the United Kingdom from membership of the European Union occurring without an agreement between the UK and the EU, for the recognition of certain divorces, legal separations and marriage annulments granted in the UK or Gibraltar.

 

The changes introduced in the Family Law Act 2019:

 

1. Living apart requirement prior to issuing of divorce proceedings reduced from four to two years:

The living apart requirement for couples required before initiating divorce proceedings is reduced by amending s 5 of the Family Law (Divorce) Act 1996 to reduce the minimum living apart period specified in that act to two years during the previous three years (reduced from four during the previous five years). Section 3(1).

 

2. ‘Living apart’ clarified:

The phrase ‘living apart’ is clarified in the context of spouses who still live under the same roof and they will 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. Section 3(1)(b). This change in the definition of living apart will make it easier for couples residing together, though living apart, to apply for divorce.

The phrase intimate and committed relationship was used in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 when defining a cohabitant in s 172(1) as one of two adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship. The 2010 act contains a number of factors that the court must take into account when determining whether 2 adults are cohabitants. As in this context the factors determine more than simply living together in an intimate and committed relationship as the factors are to be taken into account in the wider sense of determining whether or not 2 adults are cohabitants. However these factors may be of assistance in assessing whether a couple has been living apart. The factors set out in s 172(2) of the 2010 Act are all the circumstances of the relationship and the following:

(a) the duration of the relationship,

(b) the basis on which the couple live together,

(c) the degree of financial dependence of either adult on the other, and any agreements in respect of their finances,

(d) the degree and nature of any financial arrangements between the adults, including any joint purchase of an estate, or interest in land, or joint acquisition of personal property,

(e) whether there are one or more dependent children,

(f) whether one of the adults cares for and supports the children of the other, and

(g) the degree to which the adults present themselves to others as a couple.

The Family Law Act 2019 does not contain any factors such as the above to be taken into account. However in addition to the potential relevance of the factors in the 2010 Act outlined about there is assistance to be found in the case law regarding the 2010 Act such as the judgement of Baker J in DC v DR [2015] IEHC 309, paragraph 83 and following. Baker J at para 107 [again referring to the 2010 Act] states:

The scheme of the Act envisages the court looking at the seven identified factors in s.172(2) not as conclusive to the nature of the relationship but as indicative of that relationship and how it is to be properly characterised. I consider that the test requires the court to determine whether a reasonable person who knew the couple would have regarded them as living together in a committed and intimate relationship, and that the individual and many factors in how they are perceived must be taken into account.

It is possible that a similar or analogous approach could be taken by the courts in determining whether a marital couple were living apart i.e. not living together as a couple in an intimate and committed relationship.

In McA v McA [2000] 1 IR 457, the leading case on living apart McCracken J analysed the concept of living apart. He stated at 463 paragraphs 12-13:

…I do not think that 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.

Applying this test, I have no doubt that, just as parties who are physically separated may in fact maintain their full matrimonial relationship, equally parties who live under the same roof may be living apart from one another. Whether this is so is a matter which can only be determined in the light of the facts of any particular case.

Section 3 1(b) of the 2019 act states that a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature. This too reflects a s in the 2010 Act, s 172(3) which states that a relationship does not cease to be an intimate relationship for the purpose of this s merely because it is no longer sexual in nature. In analysing this s in DC v DR cited above, Baker J stated that

‘… having regard to s.172(3) it is clear that a relationship must have been at some point [author’s underlining] in time a sexual relationship for intimacy to be found. The intimacy that is intended is a sexual intimacy and not merely the intimacy of close friendship.’

 

3. Operative dates of amendments to Family Law (Divorce) Act 1996:

These amendments will apply to proceedings for the grant of a decree of divorce under the act of 1996; (a) that are instituted on or after the date s 3 of the Family Law Act 2019 comes into operation [1 December 2019], or (b) that have been instituted, and have not been concluded, prior to such date.

 

4. Judicial separation changes:
There are changes to the grounds for a decree of judicial separation. There has been a harmonisation of the concept of ‘living apart’ for spouses living in the same dwelling as a ground for judicial separation, as well as divorce. The phrase ‘in an intimate and committed relationship’ has been introduced into s 2(3)(a)(i) of the 1989 act by s 2.1(c) of the 2019 act. In addition the same caveat that a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature is also introduced in the same s and a new s 2(3)(a)(ii) is inserted into the 1989 Act to reflect this change.  

The 2019 act reduces the minimum living apart period to one year from three years that applies to judicial separation applications in cases where the respondent does not consent to the decree of judicial separation being granted (see s 2.1(d) of the 1989 act as amended by s 2(1)(a)).

 

5. Operative dates of amendments to Judicial Separation and Family Law Reform Act 1989:

These changes will apply to proceedings for the grant of a decree of judicial separation under the act of 1989 that: (a) are instituted on or after the date this s of the 2019 act comes into operation [1st December 2019], or (b) to proceedings that have been instituted, and have not been concluded, prior to such date.

This change may allow the one year no-fault, living-apart period to overtake the current default ground for a decree of judicial separation 2.1(f) that the marriage has broken down, to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application.

 

6. Changes for Cohabitants and Civil Partners: 

The reduced living-apart time period [2 of the last 3 years instead of 4 of the previous 5 years] criteria for divorce is reflected in a consequent change to the criteria permitting a person to be considered as a qualified cohabitant by amending s 172(6) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. A person may still be a qualified cohabitant if either cohabitant is married to another person, provided they were living apart for two of the previous three years. This reduces the pre-existing requirement in line with the reduction in the living apart requirement for divorce from four of the previous five years to two of the previous three years. The operative date is the coming into operation of s 4(2) of the Family Law Act 2019 on 1 December 2020.

A similar provision clarifies the term ‘living apart’ in the same way as divorce and judicial separation when dealing with dissolution of civil partnerships and amends s 110 of the 2010 Act in a similar manner.

 

7. Operative dates of amendments to Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010

The changes to s 110 of the 2010 Act will only apply to proceedings for the grant of a decree of dissolution of a civil partnership that: (a) are instituted on or after the date s 4 of the Family Law Act 2019 comes into operation, [1 December 2019] or (b) have been instituted, and have not been concluded, prior to such date.

8. Part III – not yet commenced - Recognition of UK divorces

This Part provides for the recognition of divorces, legal separations and marriage annulments granted under the law of Northern Ireland, Scotland, England and Wales, and Gibraltar, in the event that the UK withdraws from the EU without an agreement that applies to this area of law.

  1. a) Recognition of certain divorces, legal separations and marriage annulments granted in the UK or Gibraltar before coming into operation of s 6 of the Family Law Act 2019: A divorce, legal separation or marriage annulment granted under the law of the UK or Gibraltar that, prior to the coming into operation of this section, was recognised under Brussels II, will continue to be recognised.
  2. b) Recognition of certain divorces, legal separations, and marriage annulments granted in the UK or Gibraltar after coming into operation of s 7 of the Family Law Act 2019: a divorce, legal separation or marriage will be recognised if, at the date of the institution of the proceedings relating to the divorce, legal separation or marriage annulment concerned, at least one of the following requirements is satisfied:

 

  1. The spouses were habitually resident in a relevant jurisdiction (which is defined as being the UK or Gibraltar),
  2. The spouses were last habitually resident in a relevant jurisdiction, insofar as one of them still resided there,

iii.         The respondent was habitually resident in a relevant jurisdiction,

  1. The applicant (i) was habitually resident in a relevant jurisdiction, and (ii) had resided there for at least a year immediately prior to that date
  2. Either of the spouses was domiciled in a relevant jurisdiction.

A divorce, legal separation or marriage annulment from the UK and Gibraltar will not be recognised if: 

(i) Such recognition is manifestly contrary to public policy;

(ii) Where the judgment in the proceedings relating to the divorce, legal separation or marriage annulment concerned (‘the relevant judgment’) was given in default of appearance, if the respondent was not served with the document that instituted the proceedings, or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defence, unless it was determined that the respondent had accepted the judgment unequivocally;

(iii) The relevant judgment is irreconcilable with a judgment given in proceedings between the same parties in the State; or

(iv) The relevant judgment is irreconcilable with an earlier judgment given in a state other than the State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the State.

 

Some practical consequences of the commencement of the Family Law Act, 2019:

  1. The reduction in the living apart requirement from four of the last five years to two of the last three years prior to issuing proceedings for divorce will at a minimum have the following practical consequences:
  2. An increase in the number of applications for divorce in the short term.
  3. A reduction in the number of applications for judicial separation in the short and long term.
  4. An increase in the number of applications for judicial separation currently extant being changed into applications for divorce as the parties will now qualify for divorce.
  5. The retention of a similar structure – the parties must have lived apart for 2 of the last 3 years rather than simply 2 years apart, permits periods of reconciliation during the 3 years to be disregarded provided the parties have been living together for 2 years during the previous 3 years. As McCracken J. states in McA v McA cited above, at para 11:

..in my view the whole purpose of the provision in s 5(1)(a) of the 1996 Act to the effect that the parties must have lived apart from one another for at least four years during the previous five years is to allow for the situation where the parties may come together for a short time in an attempt to become reconciled, and indeed has been inserted to encourage possible reconciliation. The fact that the s in effect allows the parties to live together for one year out of five and then separate again without affecting the rights under the s, seems to me to make it quite clear that it was the view of the Legislature that it was necessary to make such provision as otherwise parties who attempted but did not attain reconciliation would not be able to avail of the Act if they lived together for a short time during the preceding five years.

  1. It is also permits those whose marriage has ended to remarry and move on in a more realistic timeframe, taking into account that it is only at the end of the two years living apart that the divorce proceedings can be initiated.
  2. The clarification and harmonisation of the phrase ‘living apart’ will make it easier for those living under the same roof to proof that they were living apart. The reality in modern Ireland is that many spouses and couples continue to cohabit until an agreement is reached regarding separation/divorce or dissolution of civil partnerships. This clarification is a welcome reflection of the realities of relationship breakdown in Ireland.
  3. Currently the most frequent ground for a decree of judicial separation is s 2(1)(f) of the Judicial Separation and Family Law Act, 1989 which states that the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application. Following the introduction of changes in s 2(1)(i) of the Family Law Act 2019 which amends s 2(1)(d) of the Judicial Separation and Family Law Act, 1989 to read as follows:

‘…that the spouses have lived apart from one another for a continuous period of at least one year immediately preceding the date of the application.’ (the requirement for the respondent to consent to the decree of judicial separation was removed), it is likely that the amended s 2(1)(d) of the Judicial Separation and Family Law Act, 1989 will replace s 2(1)(f) as the most commonly cited no fault ground for applications for judicial separation.

  1. It will still be necessary to issue separate proceedings for divorce where proceedings for judicial separation have been commenced but the parties are now entitled to a decree of divorce. [source: Jackson S.C., N.; Breakfast briefing on the Family Law Act, 2019, 21st January 2020].
  2. The enactment but not the commencement of Part III of the Act which relates to the recognition of certain divorces, legal separations and marriage annulments granted in the UK and Gibraltar is to be welcomed as an advance step in the event that no agreement is made between the UK and the EU setting out the arrangements for withdrawal.

 

 

Keith Walsh is a family law solicitor and the author of Divorce and Judicial Separation Proceedings in the Circuit Court: A Guide to Order 59. To purchase a copy of Keith's book, please click here.

 

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