Analysis provided by: Maggie Smieszek, Legal Expert.

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Legality of Marriage and Divorce

The Irish Constitution specifically recognizes the family as the basis of social order, possessing rights and having guarantees of protection by the State. The Constitution guards the institution of marriage on which the family is founded, although new amendments have added provisions allowing the dissolution of marriage. Moreover, the Constitution includes a somewhat outdated statement that "by her life within the home, a woman gives to the State a support without which the common good cannot be achieved."

To contract a valid marriage in Ireland, the couple must be at liberty to marry each other, must freely consent to the marriage and must observe the formalities required by Irish law. Under section 32 of theFamily Law Act1995, anyone marrying by religious or civil ceremony must give three months written notification of intention to marry to the registrar, or obtain a court exemption order before the marriage. Both parties must also be over 18 years of age on the day of their marriage, or have obtained a court exemption.

Divorce became legal and has been available in Ireland since a 1995 referendum in which voters rejected a provision that had been in the Constitution banning divorce, and at the same time voted to permit divorce after a couple has been separated for four years or more (Art. 41.3.2).

TheFamily Law (Divorce) Act1996 requires that couples have lived apart for at least four of the five years before proceedings are issued. A divorce cannot be granted unless at least one spouse is domiciled in the Republic of Ireland or has lived in the country for a year before bringing proceedings. The Court must be satisfied that there's no reasonable prospect of reconciliation and that both spouses and any children are properly provided for.

Matrimonial Property and Spousal Maintenance

In Ireland, a statutory separation of assets approach has been traditionally followed where property rights are not automatically altered by marriage and no automatic interest is granted to one spouse in the property of the other. TheMarried Women's Status Act1957 was an innovative piece of legislation in that it implemented the doctrine of separate property into Irish law. It treats a husband and wife as two separate persons for the purpose of all acquisitions of property. A married woman will acquire, hold and dispose of property and is capable of contracting and being rendered personally liable for any contract entered into or debt incurred by her.

Significantly, however, in recent decades this basic separate property approach has been altered by equitable trusts law in the form of equitable distribution rooted in a number of recent legislative enactments. These include theJudicial Separation and Family Law Reform Act1989, theFamily Law Act1995 and theFamily Law (Divorce) Act1996. The rationale behind equitable distribution is to ensure that the interests of the dependent members of the family are met. It ensures that a fair division of assets is made according to the contributions of both parties, whether of a domestic or financial nature.

On granting a divorce, the court may make a property adjustment order. The separate property system aims to ensure that each spouse can take from the marriage the property that he or she brought into the marriage. Although this system may appear just and fair, most assets merge during the course of the marriage and if one spouse is a breadwinner then most assets will tend to be in the breadwinner's name. The court may make a maintenance order which shall cease upon the remarriage of the receiving spouse. Maintenance is the legally enforceable entitlement to financial support that dependant spouses, including divorced spouses, and dependant children have against a parent, spouse or ex-spouse. The normal criteria are the balance between reasonable needs and ability to pay. In certain circumstances, behaviour may be relevant.

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