Fifteenth Amendment of the Constitution of Ireland

The Fifteenth Amendment of the Constitution Act 1995 (previously bill no. 15 of 1995) is an amendment of the Constitution of Ireland which removed the constitutional prohibition on divorce, and allowed for the dissolution of a marriage provided specified conditions were satisfied. It was approved by referendum on 24 November 1995 and signed into law on 17 June 1996.

Fifteenth Amendment of the Constitution of Ireland
To remove the constitutional prohibition on divorce
Location Ireland
Date24 November 1995 (1995-11-24)
Results
Votes %
Yes 818,842 50.28%
No 809,728 49.72%
Valid votes 1,628,570 99.67%
Invalid or blank votes 5,372 0.33%
Total votes 1,633,942 100.00%
Registered voters/turnout 2,628,834 62.15%

Background

The Constitution of Ireland adopted in 1937 included a constitutional ban on divorce. A previous bill to amend this provision proposed by the Fine Gael–Labour Party government of Garret FitzGerald, the Tenth Amendment of the Constitution Bill 1986, was rejected in a referendum by 63.5% to 36.5%.

In the intervening years, the Judicial Separation and Family Law Reform Act 1989 allowed for legal separation to be recognised by a court. The government made other 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.[1]

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".[2]

In 1995, the Fine Gael–Labour Party–Democratic Left government of John Bruton proposed a new amendment to allow for divorce in specified circumstances.

Changes to the text

The Fifteenth Amendment deleted the following Article 41.3.2º of the Constitution:

2º No law shall be enacted providing for the grant of a dissolution of marriage.

and substituted that subsection with the following:

2º 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.

Oireachtas Debate

The Fifteenth Amendment of the Constitution (No. 2) Bill 1995 was proposed in the Dáil on 27 October 1995 by Minister for Equality and Law Reform Mervyn Taylor.[3] An amendment was proposed by Helen Keogh on behalf of the Progressive Democrats which would have allowed for legislation generally, without the restrictions proposed in the government's proposal:

2º Notwithstanding any other provision of this Constitution, a Court designated by law may grant a dissolution of marriage where it is satisfied that all the conditions prescribed by law are complied with.

This amendment was rejected and the Bill passed final stages by the Dáil without division on 11 October.[4] It was passed by the Seanad on 18 October and proceed to a referendum on 24 November 1995.[5]

Campaign

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.[6]

Result
Fifteenth Amendment of the Constitution of Ireland referendum[7]
Choice Votes %
Yes 818,842 50.28
No 809,728 49.72
Valid votes 1,628,570 99.67
Invalid or blank votes 5,372 0.33
Total votes 1,633,942 100.00
Registered voters and turnout 2,628,834 62.15
Results by constituency[7]
Constituency Electorate Turnout (%) Votes Proportion of votes ± Yes 1986
Yes No Yes No
Carlow–Kilkenny 84,365 64.2% 24,651 29,283 45.7% 54.3% +13.9%
Cavan–Monaghan 80,970 59.1% 17,817 29,787 37.4% 62.6% +10.0%
Clare 67,829 59.4% 17,576 22,577 43.8% 56.2% +12.2%
Cork East 60,995 65.8% 17,287 22,748 43.2% 56.8% +13.7%
Cork North-Central 69,936 61.9% 20,110 23,050 46.6% 53.4% +16.1%
Cork North-West 45,938 67.0% 10,409 20,264 33.9% 66.1% +13.0%
Cork South-Central 79,270 68.0% 28,433 25,360 52.9% 47.1% +15.3%
Cork South-West 46,046 64.9% 11,755 18,034 39.5% 60.5% +12.6%
Donegal North-East 49,473 51.9% 10,401 15,219 40.6% 59.4% +14.0%
Donegal South-West 50,208 51.1% 10,450 15,109 40.9% 59.1% +10.7%
Dublin Central 59,215 57.3% 19,378 14,474 57.2% 42.8% +18.1%
Dublin North 68,512 66.5% 29,704 15,756 65.3% 34.7% +14.7%
Dublin North-Central 64,070 69.0% 25,721 18,415 58.3% 41.7% +14.3%
Dublin North-East 58,595 66.9% 25,360 13,714 64.9% 35.1% +13.9%
Dublin North-West 56,469 63.2% 21,628 13,942 60.8% 39.2% +13.2%
Dublin South 87,565 70.0% 39,454 21,723 64.5% 35.5% +10.1%
Dublin South-Central 60,825 64.3% 22,839 16,131 58.6% 41.4% +13.1%
Dublin South-East 63,830 60.3% 24,901 13,493 64.9% 35.1% +11.1%
Dublin South-West 73,109 61.0% 29,767 14,769 66.8% 33.2% +13.3%
Dublin West 63,487 62.4% 25,811 13,697 65.3% 34.7% +16.5%
Dún Laoghaire 89,160 67.6% 41,028 19,121 68.2% 31.8% +9.4%
Galway East 43,768 59.0% 9,003 16,730 35.0% 65.0% +11.8%
Galway West 83,513 56.8% 22,977 24,261 48.6% 51.4% +11.7%
Kerry North 49,762 58.5% 11,848 17,131 40.9% 59.1% +13.9%
Kerry South 45,849 58.4% 10,203 16,456 38.3% 61.7% +14.2%
Kildare 82,825 61.7% 29,397 21,592 57.7% 42.3% +12.7%
Laois–Offaly 81,078 63.0% 20,426 30,467 40.1% 59.9% +13.5%
Limerick East 73,956 62.9% 23,184 23,140 50.0% 50.0% +14.9%
Limerick West 46,069 62.7% 10,617 18,159 36.9% 63.1% +12.0%
Longford–Roscommon 61,920 61.3% 13,333 24,477 35.3% 64.7%
Louth 68,809 62.0% 22,004 20,516 51.7% 48.3% +15.9%
Mayo East 44,366 56.3% 9,243 15,621 37.2% 62.8% +12.9%
Mayo West 45,745 55.3% 10,455 14,764 41.5% 58.5% +15.1%
Meath 83,655 59.6% 23,790 25,861 47.9% 52.1% +16.2%
Sligo–Leitrim 62,116 59.0% 15,034 21,490 41.2% 58.8% +11.7%
Tipperary North 43,958 65.6% 11,020 17,699 38.4% 61.6% +12.8%
Tipperary South 58,502 64.1% 15,798 21,557 42.3% 57.7% +15.1%
Waterford 66,132 62.0% 20,305 20,508 49.8% 50.2% +16.7%
Westmeath 46,900 60.1% 11,704 16,353 41.7% 58.3%
Wexford 79,445 62.1% 23,850 25,305 48.5% 51.5% +17.8%
Wicklow 80,599 63.7% 30,171 20,975 59.0% 41.0% +12.1%
Total 2,628,834 62.2% 818,842 809,728 50.3% 49.7% +13.8%

The '± Yes 1986' column shows the percentage point change in the Yes vote compared to the Tenth Amendment of the Constitution Bill on a similar proposal rejected in a referendum in 1986.

Court challenge

During the referendum, government funds were used to advertise in favour of a 'Yes' vote. One week before the referendum, Patricia McKenna, a Green Party MEP, successfully lodged a complaint against the government with the Supreme Court, and the advertising stopped.[1] This Supreme Court decision led to legislation that would establish a Referendum Commission for each referendum, commencing with the Eighteenth Amendment in 1998.

The returning officer submitted a provisional certificate of the result of the referendum in the High Court as required by the Referendum Act 1994.[8][9]

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".[9] 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.[9][1] 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.[9] President Mary Robinson signed the amendment bill into law three days later.

Subsequent legislation

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[10] and signed into law on 27 November 1996.[11] 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,[12] 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.[13]

The Thirty-eighth Amendment of the Constitution of Ireland was approved in a referendum held in May 2019, and removed the constitutional requirement for parties to be living apart before a divorce. It also altered the provisions in Article 41.3.3º on the recognition of foreign divorce.

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References
  1. Coulter, Carol (13 June 1996). "Ten year wait is finally over for those who campaigned for divorce". The Irish Times. Retrieved 6 April 2018.
  2. 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.
  3. "Fifteenth Amendment of the Constitution (No. 2) Bill, 1995: Second Stage". Houses of the Oireachtas. 27 October 1995. Retrieved 21 May 2018.
  4. "Fifteenth Amendment of the Constitution (No. 2) Bill, 1995: Fifth Stage". Houses of the Oireachtas. 11 October 1995. Retrieved 21 May 2018.
  5. "Fifteenth Amendment of the Constitution (No. 2) Bill, 1995: Committee and Final Stages". Houses of the Oireachtas. 11 October 1995. Retrieved 21 May 2018.
  6. "Premier Urges Irish to Vote For Legalizing Of Divorce". New York Times. 20 November 1995. Retrieved 8 November 2013.
  7. "Referendum Results 1937–2015" (PDF). Department of Housing, Planning and Local Government. 23 August 2016. p. 52. Retrieved 19 May 2018.
  8. "Referendum Act, 1994, Section 40". Irish Statute Book. Retrieved 29 April 2015.
  9. Newman, Christine (15 June 1996). "Result of divorce referendum is formally signed by High Court". The Irish Times. Retrieved 29 April 2015.
  10. "Family Law (Divorce) Bill, 1996: Second Stage". Dáil Éireann debates. 27 June 1996. Retrieved 18 May 2015.
  11. "Family Law (Divorce) Act, 1996". Irish Statute Book. Retrieved 29 April 2015.
  12. "Family Law (Divorce) Act, 1996, Section 1". Irish Statute Book. Retrieved 31 October 2015.
  13. 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.

Further reading
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