Family Law (Divorce) Act 1996

Grant of decree of divorce and custody etc., of children.


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, F5[at least two years during the previous three 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.

F6[(1A) For the purposes of this section

(a) spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship, and

(b) a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature.]

(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.




Substituted (1.12.2019) by Family Law Act 2019 (37/2019), s. 3(1)(a), S.I. No. 585 of 2019, subject to transitional provision in subs. (2).


Inserted (1.12.2019) by Family Law Act 2019 (37/2019), s. 3(1)(b), S.I. No. 585 of 2019, subject to transitional provision in subs. (2).

Editorial Notes:


Power granted to Court, in proceedings relating to subs. (2), to direct the HSE to undertake an investigation of a child’s circumstances by Child Care Act 1991 (17/1991), s. 20(1), as substituted (9.01.1998) by Children Act 1997 (40/1997), s. 17, commenced as per s. 1(2), and as amended (1.01.2005) by Health Act 2004 (42/2004), s. 75 and sch. 7 part 6, S.I. No. 887 of 2004.