THE first application for divorce since the passage of the referendum is expected to be made in the High Court today.
The male applicant, who is seriously ill, is seeking a divorce order under the terms of the Constitution, rather than the Family Law (Divorce) Act recently passed by the Oireachtas. The Act does not come into effect until February 27th, three months after its passage into law.
The Irish Times has confirmed that the applicant is a man in his 50s who says he has a short time to live. He has been separated from his wife for many years and has been living with another woman for a long period. He wishes to marry her before his death.
The central point in the case is that the applicant is seeking a declaration from the High Court that he is entitled a divorce under the terms of the constitutional amendment. He is also claiming that his constitutional rights are being infringed by the Government's delay in bringing the legislation into operation.
The man sought leave to seek such a declaration from the President of the High Court, Mr Justice Costello, before Christmas because of his short life expectancy. He also sought leave to sidestep the requirement of three months notice for an intended marriage.
It is reliably understood that his wife is not opposing today's High Court application.
It is also understood that the central point in the man's case is that the High Court now has the constitutional jurisdiction to provide for a dissolution of marriage under the declared right to divorce established by the referendum in November 1995.
Government sources appeared last night to be unaware of the impending hearing. It was not clear whether the State is being joined in the case.
By the narrowest majority in the history of the State, the Constitution was amended 14 months ago providing for divorce in certain circumstances.
The wording of the constitutional amendment passed in 1995 permits a court, designated by law, to 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 jaw; and (iv) any further conditions prescribed by law are complied with.
With a mere 0.56 per cent difference between the Yes and No votes in the referendum, the results were challenged in a petition to the High Court and, on appeal, to the Supreme Court.
The Government was forced to delay the introduction of the Family Law (Divorce) Bill into the Dail until the middle of last year until the result of the referendum was upheld.
The Divorce Act provides for the financial consequences of divorce.
