PART II

The Obtaining of a Decree of Divorce

5. —(1) Subject to the provisions of this Act, where, on application to it in that behalf by either of the spouses concerned, the court is satisfied that—

(a) 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,

(b) there is no reasonable prospect of a reconciliation between the spouses, and

(c) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family,

the court may, in exercise of the jurisdiction conferred by Article 41.3.2° of the Constitution, grant a decree of divorce in respect of the marriage concerned.

(2) Upon the grant of a decree of divorce, the court may, where appropriate, give such directions under section 11 of the Act of 1964 as it considers proper regarding the welfare (within the meaning of that Act), custody of, or right of access to, any dependent member of the family concerned who is an infant (within the meaning of that Act) as if an application had been made to it in that behalf under that section.

6. —(1) In this section “the applicant” means a person who has applied, is applying or proposes to apply to the court for the grant of a decree of divorce.

(2) If a solicitor is acting for the applicant, the solicitor shall, prior to the institution of the proceedings concerned under section 5 —

(a) discuss with the applicant the possibility of a reconciliation and give to him or her the names and addresses of persons qualified to help to effect a reconciliation between spouses who have become estranged,

(b) discuss with the applicant the possibility of engaging in mediation to help to effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the applicant and the other spouse and give to the applicant the names and addresses of persons qualified to provide a mediation service for spouses who have become estranged, and

(c) discuss with the applicant the possibility (where appropriate) of effecting a separation by means of a deed or agreement in writing executed or made by the applicant and the other spouse and providing for their separation.

(3) Such a solicitor shall also ensure that the applicant is aware of judicial separation as an alternative to divorce where a decree of judicial separation in relation to the applicant and the other spouse is not in force.

(4) If a solicitor is acting for the applicant—

(a) the originating document by which the proceedings under section 5 are instituted shall be accompanied by a certificate signed by the solicitor indicating, if it be the case, that he or she has complied with subsection (2) and, if appropriate, subsection (3) in relation to the matter and, if the document is not so accompanied, the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to engage in the discussions specified in subsection (2), and, if appropriate, to make the applicant aware of judicial separation,

(b) if the solicitor has complied with paragraph (a), any copy of the originating document aforesaid served on any person or left in an office of the court shall be accompanied by a copy of the certificate aforesaid.

(5) A certificate under subsection (4) (a) shall be in a form prescribed by rules of court or a form to the like effect.

(6) The Minister may make regulations to allow for the establishment of a Register of Professional Organisations whose members are qualified to assist the parties involved in effecting a reconciliation, such register to show the names of members of those organisations and procedures to be put in place for the organisations involved to regularly update the membership lists.

7. —(1) In this section “the respondent” means a person who is the respondent in proceedings in the court under section 5 .

(2) If a solicitor is acting for the respondent, the solicitor shall, as soon as may be after receiving instructions from the respondent in relation to the proceedings concerned under section 5 —

(a) discuss with the respondent the possibility of a reconciliation and give to him or her the names and addresses of persons qualified to effect a reconciliation between spouses who have become estranged,

(b) discuss with the respondent the possibility of engaging in mediation to help to effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the respondent and the other spouse and give to the respondent the names and addresses of persons qualified to provide a mediation service for spouses who have become estranged, and

(c) discuss with the respondent the possibility (where appropriate) of effecting a separation by means of a deed or agreement in writing executed or made by the applicant and the other spouse and providing for their separation.

(3) Such a solicitor shall also ensure that the respondent is aware of judicial separation as an alternative to divorce where a decree of judicial separation is not in force in relation to the respondent and the other spouse.

(4) If a solicitor is acting for the respondent—

(a) the memorandum or other document delivered to the appropriate officer of the court for the purpose of the entry of an appearance by the respondent in proceedings under section 5 shall be accompanied by a certificate signed by the solicitor indicating, if it be the case, that the solicitor has complied with subsection (2) and, if appropriate, subsection (3) in relation to the matter and, if the document is not so accompanied, the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to engage in the discussions specified in subsection (2) and, if appropriate, to make the applicant aware of judicial separation,

(b) if paragraph (a) is complied with, any copy of the document aforesaid given or sent to the other party to the proceedings or his or her solicitor shall be accompanied by a copy of the relevant certificate aforesaid.

(5) A certificate under subsection (4) (a) shall be in a form prescribed by rules of court or a form to the like effect.

8. —(1) Where an application is made to the court for the grant of a decree of divorce, the court shall give consideration to the possibility of a reconciliation between the spouses concerned and, accordingly, may adjourn the proceedings at any time for the purpose of enabling attempts to be made by the spouses, if they both so wish, to effect such a reconciliation with or without the assistance of a third party.

(2) Where, in proceedings under section 5 , it appears to the court that a reconciliation between the spouses cannot be effected, it may adjourn or further adjourn the proceedings for the purpose of enabling attempts to be made by the spouses, if they both so wish, to reach agreement, with or without the assistance of a third party, on some or all of the terms of the proposed divorce.

(3) If proceedings are adjourned pursuant to subsection (1) or (2), either or both of the spouses may at any time request that the hearing of the proceedings be resumed as soon as may be and, if such a request is made, the court shall, subject to any other power of the court to adjourn proceedings, resume the hearing.

(4) The powers conferred by this section are additional to any other power of the court to adjourn proceedings.

(5) Where the court adjourns proceedings under this section, it may, at its discretion, advise the spouses concerned to seek the assistance of a third party in relation to the effecting of a reconciliation between the spouses or the reaching of agreement between them on some or all of the terms of the proposed divorce.

9. —An oral or written communication between either of the spouses concerned and a third party for the purpose of seeking assistance to effect a reconciliation or to reach agreement between them on some or all of the terms of a separation or a divorce (whether or not made in the presence or with the knowledge of the other spouse), and any record of such a communication, made or caused to be made by either of the spouses concerned or such a third party, shall not be admissible as evidence in any court.

10. —(1) Where the court grants a decree of divorce, the marriage, the subject of the decree, is thereby dissolved and a party to that marriage may marry again.

(2) For the avoidance of doubt, it is hereby declared that the grant of a decree of divorce shall not affect the right of the father and mother of an infant, under section 6 of the Act of 1964, to be guardians of the infant jointly.