LGBT & Same-Sex Divorce in Ireland

Since the historic Marriage Equality Referendum in 2015, same-sex couples in Ireland have enjoyed the legal right to marry. However, as with any relationship, some marriages unfortunately end in separation and divorce. This article outlines the legal framework for LGBT and same-sex divorce in Ireland, the specific considerations that may arise, and hopefully will assist people who are going through this challenging process. As I share my insights on this topic, I will delve into real experiences and offer practical advice, and I hope that  I can demystify the process for anyone facing a same-sex divorce in Ireland.

Historical Context of LGBT Rights in Ireland

The journey towards LGBT rights in Ireland has been long and complex. The modern LGBT rights movement began in the 1970s, with groups like the Sexual Liberation Movement emerging. In 1993 homosexuality was decriminalised. This was a significant change, driven by advocacy and the efforts of activists. Then the Civil Partnership Act 2010 provided legal recognition for same-sex couples, although it fell short of full marriage equality. Finally, in May 2015 Ireland became the first country to legalise same-sex marriage by popular vote. This reflected a major shift in societal attitudes. It marked a huge change in the attitudes of Irish people towards LGBT rights in Ireland.

Legal Milestones Leading to Marriage Equality

To be clear there are three current types of recognised LGBT relationships in Ireland. The first is obviously marriage. The Marriage Act 2015 legalised same-sex marriage in Ireland, granting same-sex couples the same rights and responsibilities as heterosexual couples. This includes the ability to file for divorce under similar terms. The grounds for divorce, such as the breakdown of marriage and separation periods, apply equally to same-sex couples. There were Civil Partnerships which were a precursor to same-sex marriages but they were replaced by marriages by the Marriage Act 2015. Finally, there is the relationship of being a qualified cohabitant. This is where two people live together in an intimate and committed relationship for a period of 5 years (2 if children of union). It essentially grants to the financially dependent spouse certain rights similar to a spouse of a marriage when the relationship ends.

Divorce Laws for Same-Sex Couples in Ireland

Following the enactment of the Marriage Act 2015, same-sex marriages are legally recognised in Ireland and are subject to the same divorce laws as heterosexual marriages. This means the core legal requirements and processes are identical regardless of sexual orientation. 

Criteria for Obtaining a Divorce

To obtain a divorce in Ireland, couples must satisfy the following criteria:

1. The spouses must have lived apart for at least two of the previous three years before the application is made
2. There must be no reasonable prospect of reconciliation
3. Proper provision must be made for both spouses and any dependent children

While it may seem obvious, a divorce is a divorce no matter who is involved. I have written numerous articles on what to expect from the divorce process etc and all these articles are equally relevant to all marriage breakdown. 

Unique Considerations for Same-Sex Couples with Children

While the legal framework is identical, same-sex couples may face unique circumstances that may require different considerations mainly surrounding Children and Parental Rights

These considerations in LGBT relationships which involve additional legal complexities are:

• For families with donor-conceived children: Legal parentage may not automatically apply to both spouses
• Adoption scenarios: Understanding the legal status of both parents in the adoption process
• Surrogacy arrangements: Navigating the complex and evolving legal landscape surrounding surrogacy in Ireland

Foreign Same-Sex Marriages and Partnerships

The only other real way I suppose that the divorce of same-sex couples is different is that some LGBT couples may have entered into civil partnerships or marriages in other jurisdictions before they were legally recognised in Ireland. Understanding how these relationships are treated under Irish law is crucial for divorce proceedings. In addition obviously, because same-sex marriages are so new, there have not been that many same-sex divorces which would provide practitioners with experience in dealing with these types of cases. By contras,t divorce has been around since 1996.

Ending a Civil Partnership in Ireland

While they are relatively rare, civil partnership “divorces” are called dissolutions of the partnership and are effectively the same as divorces of a marriage. The same timelines and rules generally apply and a court is able to make the same orders. In our time in practice, we have only ever had to advise on one such union as there was only a 5 year window when these partnerships were available.

Rights of Qualified Cohabitants Upon Separation

As previously stated, qualified cohabitants are cases that we have advised on a number of occasions and the rights that are involved and protected are not that well known but extremely important. As I have explained what a qualifying cohabitant is, it is important to know what it entitles persons living in these situations. This act is only applicable to persons who establish under the act that they are financially dependent on the other cohabitant. So for instance, where a couple lives and both are earning the same income, then this act does not apply. The question of dependence is determined by a court based on a number of factors. These are:

1. the financial circumstances, needs, and obligations of each qualified cohabitant.
2. the rights and entitlements of any spouse or former spouse, of any civil partner or former civil partner.
3. the rights and entitlements of any dependent child or of any child of a previous relationship of either cohabitant
4. the duration of the parties’ relationship, the basis on which the parties entered into the relationship and the degree of commitment of the parties to one another.
5. the contributions that each of the cohabitants made or is likely to make in the foreseeable future to the welfare of the cohabitants or either of them including any contribution made by each of them to the income, earning capacity, or property and financial resources of the other.
6. any contributions made by either of them in looking after the home.
7. the effect on the earning capacity of each of the cohabitants of the responsibilities assumed by each of them during the period they lived together as a couple and the degree to which the future earning capacity of a qualified cohabitant is impaired by reason of that qualified cohabitant having relinquished or foregone the opportunity of remunerative activity in order to look after the home,
8. any physical or mental disability of the qualified cohabitant.
9. the conduct of each of the cohabitants, if the conduct is such that, in the opinion of the court, it would be unjust to disregard it.

The Court then considers whether to make an order for payment of maintenance or a property adjustment order or a lump sum based on what is “just and equitable”. It is important that this test is different than the test in a divorce case which is “proper provision”. For both parties, it is important that in order to access these rights or monies one has to assert them ie one has to go to court. There is a very tight timeline to assert these rights namely 2 years from when the relationship ends. This time limit and other parts of the act (can a person be a cohabitant if he/she lives with a married person?) would prompt me to say that any person in this situation should receive legal advice. I should say that just because one does not acquire rights under this redress scheme does not mean that one cannot initiate an equity-type case based on your financial contributions to a property.

Social and Emotional Challenges During LGBT Divorce

Despite advancements in LGBT rights, societal attitudes can still pose significant challenges during divorce. Stigma related to sexual orientation often manifests in various ways, including perceived discrimination from some legal professionals or even family members. This can complicate the divorce process, making individuals feel unsupported and isolated. Many LGBT individuals may fear that societal backlash could affect their legal proceedings or custody arrangements. As a result, the emotional toll becomes heavier due to the need to navigate a system that may not fully understand or respect their experiences. These perceptions that are understandable for the LGBT community are in my experience of the courts and legal professionals not accurate. This is a result of the fact that Ireland has become a very progressive and modern country.

Choosing a Solicitor Experienced in LGBT Divorce

While I agree that most legal practitioners will be most receptive to dealing with LGBT divorces, I would suggest that you choose a dedicated Family Law solicitor – especially one who has experience with these types of divorces. At The Family Practice, we have successfully helped several LGBT clients navigate the complexities of divorce in Ireland.