Contrary to the assertions of the Minister for Justice, European legislation has undermined the will of the Irish people on the protection of marriage; Dublin votes but Brussels decides, writes Roderick Maguire
Marital breakdown is an increasing reality for many families in the State. The Minister for Justice, Equality and Law Reform wrote last week in relation to his view on the changing regime of divorce.
In 1995 Ireland voted by popular referendum, by a narrow majority, to allow Irish courts to dissolve marriages. The mechanism is provided for in the 1996 Divorce Act. Since 1986 there had been a special regime regarding foreign divorces which allowed for those foreign divorces to be recognised in Ireland in certain limited circumstances.
In 1997, however, again by referendum, Ireland approved the Amsterdam Treaty. This treaty enlarged EU competence further, a controversial issue then as now. Ireland, along with Britain and Denmark, chose an "opt-in, opt-out" approach in relation to further proposals in the field of traditionally domestic legislation, such as family law.
In approving that treaty, the people of the Republic adopted an amendment to Bunreacht na hÉireann, namely Article 26.4.6. This provides that prior approval of both Houses of the Oireachtas should be obtained before Ireland opted into certain social legislation.
Mr McDowell in his article relied heavily on this provision as a stout bulwark against any undermining of our constitutional protection of marriage.
Despite his assurances in this regard, to date Article 26.4.6 of the Constitution has not adequately protected the institution of marriage.
The first proposal Ireland opted into in 1999 under this Article was the Brussels II Regulation, relating to divorce, separation and certain provisions regarding children.
The Houses of the Oireachtas did not vote on the regulation as finalised, but an earlier draft.
Dublin voted, and then Brussels decided.
There are many differences between the European Commission proposal brought before the Dáil by the Minister for State for Health and Children on that day in 1999 and the regulation that is now part of our law.
These changes are worrying because of what they represent: a legislative system being enforced in Ireland that the Irish people do not control.
The regulation as adopted represents an undermining of the constitutional protections afforded to the institution of marriage.
The Minister is correct in saying that the European rules do not relate to "purely domestic" marriages. Under domestic law, the Irish courts will only grant a divorce where the couple have not lived together for three of the last four years, there is no prospect of reconciliation, and proper provision is made for both spouses.
Under the regulation, however, the Irish court must recognise divorces that are obtained in other member states that are party to the regulation.
This applies even where the divorce concerns, for instance, two Irish citizens, one of whom has taken up residence in another country for some time.
Recognition must be given, even where the requirements for divorce in Ireland are not complied with. The Brussels II regulation therefore applies the lowest common denominator to divorce in Europe.
In the situation outlined above, the Irish spouse who has been divorced abroad by his or her spouse, now lacks the protection of the 1996 Divorce Act. They can be divorced in another country, and the Irish courts will recognise that divorce.
Before the implementation of the Brussels II Regulation, recognition of foreign divorces in this jurisdiction centred on the legal notion of domicile - not where a spouse actually lived, but to where they intended to ultimately live or eventually return.
The Irish courts always looked at the foreign divorce using Irish criteria.
Now that approach is no longer open to the Irish courts.
If a divorce has been granted in a member state that is party to the regulation, the Irish courts must recognise it. The high protection given to marriage in the Irish Constitution only applies in certain circumstances. It is not the institution of marriage that is protected any longer, but rather certain parties who have entered into a marriage contract.
These are parties who are free to move to another jurisdiction and to "forum shop" within the EU, and to bring their application more easily before the court in the other jurisdiction.
Since the implementation of the Brussels II Regulation, recognition of a foreign divorce in Ireland may also be based on nationality.
Does this discriminate against Irish citizens?
There is a possibility of a challenge to our divorce laws under the European Convention on Human Rights. If such a challenge was successful, this would relax the stringent legislative requirements under the 1996 Divorce Act.
There are thus a number of grounds on which divorce can be granted under the new rules of the regulation, whether these grounds are based on "habitual residence" or nationality. Either spouse could qualify to bring divorce or separation proceedings in a number of member states.
In such circumstances, marriage breakdown becomes an undignified race to the courthouse. The jurisdiction of the courts of a country under the regulation to decide the divorce application will depend on which proceedings started first.
In a recent case before the High Court, the regulation was applied and divorce proceedings instituted in France took precedence over Irish proceedings. Therefore the divorce in that case will be considered in the French courts, applying French law, and the Irish proceedings fall.
In implementing the Brussels II Regulation, the Government has won a battle that may allow for short-term gain in harmonising the approach to divorce within the EU. This is in effect an undermining of the will of the Irish people. As discussed at the time of the divorce referendum, an explicit protection of the institution of marriage voted upon in 1995 has been undermined through legislation at the European level.
Is this what the people voted for?
Roderick Maguire is a practising barrister