An informed debate on the operation of Irish divorce law in the wider context of our European obligations is overdue.
The EU Commission has produced a Green Paper seeking the views of governments on measures to bring harmony to divorce legislation across EU member states. It wants to help "cross-national" couples who face particular difficulties after they decide to divorce. Ireland is required to respond by September.
Since details of the Green Paper were reported in The Irish Times last Thursday, the Government has sought to suggest that nothing has changed in this State's divorce regime since the amendment to the Constitution in 1995 and the introduction of divorce legislation. It says Ireland can opt in or out of any measure governing divorce adopted at EU level. Strictly speaking, this is true.
What is also true, however, is that in 2000 Ireland opted in to an EU regulation which introduced a number of mechanisms for the recognition of divorces with a cross-border dimension. This regulation is known as Brussels II and there was no debate on its substance at the time.
The mechanisms introduced by the regulation allow any Irish person who can establish "permanent residence" in another EU state to seek a divorce there under its law. Such a divorce would have to be recognised in Ireland, without waiting the four years prescribed in the Constitution. "Permanent residence" is easier to establish than the previous condition of domicile. And a fraudulent claim of such residence would not invalidate the divorce. The leading legal expert in the area, Geoffrey Shannon, has described this as "quickie divorce" for those who can afford to establish permanent residence elsewhere, for example, in Belfast. It introduces a two-tier divorce regime, where those with resources can have quicker access to divorce than those who have not.
The regulation also gives the state where a divorce is first applied for control of the case, superseding any claim to hear the case from courts in the state where the second spouse lives. This effectively promotes a rush to court, thereby undermining efforts to promote mediation. Irish divorce law provides for divorcing spouses to be pointed towards mediation before going to court.
After four years of operation, a number of difficulties have emerged with the operation of Brussels II. The European Commission is now seeking suggestions as to how to deal with them. The Government has said it will reply. However, it has little to say about why this far-reaching regulation was opted into in the first place without any debate whatsoever.
The implications of Brussels II for our divorce regime have become an issue of legal controversy in several cases in the High Court in recent times. The proceedings involved have not yet concluded. The legal arguments are made in private in family law. But perhaps the Commission's Green Paper, and the need to respond to it, will promote a much-needed open debate odivorce.