Irish Family Law Justice System

The introduction of the Judicial Separation and Family Law Reform Act, 1989, the Family Law Act, 1995 and the Family Law (Divorce) Act, 1996 have introduced far greater legislative control in the area of family law than here-to-fore. The level of marriage breakdowns and the desire to regulate family matters and allow new relationships to begin and develop have led to this increased legislation. However, many would say that there is too much control and interference in family matters by the State and in consequence the courts.

 Some have noted that you sign two papers to get married and that you must wait 4 years, engage solicitors, barristers and appear in a Circuit Court of law to obtain a decree to get out of the marriage. If at 18 years of age you can give 3 months notice to the Marriage Registrar and get married why can you not at 28, 38, 48 or 58 years of maturity give 3 months notice to the Marriage Registrar and get unmarried? Indeed many would say that the courts should only be involved when there is a necessity to determine ownership of property, custody and maintenance of children etc and even then only after all other avenues of mediation are explored.

 We believe the governments free mediation service should be improved and extended and given statutory powers to determine issues in regard to the settlement of the family home, custody and access to children, maintenance etc by trained and qualified mediators. If either party wishes to contest their decisions then they should have access to the courts and if the courts find against them then they should pay all costs. The State should be active in providing alternative methods of settling issues relating to marriage than by the use of our extremely busy and costly court system and lining the pockets of solicitors and barristers as they play chess with peoples lives.

Of course couples can solve their disagreements between them without resolve to the courts but many, some because of lack of information, believe that a court remedy is necessary to settle their disputes. Unfortunately family law negotiations are adversarial and hostile in nature and do not lend themselves to solving marital disputes in a co-operative and peaceful way. 

Conventional Practice

The conventional practice in the Irish legal system is for legal proceedings to be instigated by one party against the other without any meaningful negotiation of the issues until perhaps on the “steps of the court”. And this despite the fact that the legislature has made it a legal requirement that the parties seeking a judicial separation or divorce must first be encouraged by their respective solicitors to consider, reconciliation, mediation to help effect a separation on an agreed basis or by negotiation and conclusion of a written separation agreement.

The couples marital history is briefly summarised and then facts and in some cases fiction are stated in civil bills and the law is then requested to adjudicate on the parties respective allegations, claims and counterclaims. From the beginning and in many cases with the help of the legal profession the parties are at each others throat.

Legal Negotiations

It is the duty of solicitors and barristers to promote and protect their client’s interest to the best of their ability but this duty does not lend itself to any other consideration than to win the case, in many situations at all costs. There is no room, nor can there be, for sentimentality, emotion or concern for the future relationship of the parties if they are expected to protect their clients interest to the detriment of all others. The breakdown of any relationship can be traumatic and have emotional and psychological consequences that greatly affect both parties and their children well into the future. The Irish adversarial family law system can in most cases be nothing short of a declaration of war as between the parties, a war that ultimately will have no winner.

The fact that the vast majority of judicial separations are finally granted on the grounds, “that the marriage has broken down ……and that a normal marital relationship has not existed between the parties for a period of one year”, has not prevented the legal representatives alleging other grounds like adultery, behaviour and desertion as grounds at the outset of so called negotiations. This reliance on alleging that the other party is at fault in the initial transfer of information is in many cases a deliberate ploy of entering the negotiations with “two guns blaring” in an effort to gain an advantage and put the other side “under pressure”. It is a similar practice in divorce proceedings even though our system is a “no fault” system and the courts have stated that behaviour will not be taken into account unless it is “gross and obvious”.

Court Settlements

It has long been accepted by the legal profession and the judiciary that the phenomenon of settlement of family law cases “at the door of the court” is prevalent in the Irish system and needs reform. The consequences of hurried negotiations and in some cases “forced” consent on parties to a judicial separation or divorce can lead to settlements that parties are not happy with and contribute to continued difficulties between them.

You may ask why there are so many “steps of the court” settlements. The legal profession believe it is because firstly, the judiciary take the “consent” cases first on the list of cases to be heard and therefore the “contested” cases are more unlikely to be heard in any given day. Secondly, there are too few days allotted to family law with the result that there is a backlog of “contested” cases to be heard. Thirdly, the judiciary expect the legal teams to have consent. Therefore the legal practitioners believe that such practices can have the effect of adding years to the finalisation of any “contested” court hearing and with their clients crying out for an end to the nightmare of ongoing proceedings, allegations, claims and counterclaims the professionals have no option but to eventually heavily influence consent agreements “at the door of the court”.

The fact that it can take on average two years and more before the case is forwarded for a  listing has never been properly explained and in the absence of such explanations one can be forgiven for believing that many solicitors take on too much work, are not attentive to detail and do not share their clients wishes to get the matter over with as speedily as possible. No matter what the reasons are and all or some of the above can be contributory factors the problems remain the same for their clients, a long contentious procedure, an extremely costly process, seeds of disharmony sown between the parties and a very negative view of the legal profession and our court system. There must be a better way of dealing with the consequences of marriage breakdown.

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