Subscriber OnlyOpinion

We’re heading for an unfair, elitist two-tier divorce system

A new law will shoehorn about 6,000 complex family law cases into an already overburdened District Court. But those involving property worth more than €1 million will still be heard in the Circuit Court

'There were 547,519 new incoming matters before the District Courts in 2022, representing 85 per cent of all cases before the entire courts. The District Court is simply not set up to hear lengthy, complex sensitive cases concerning relationship breakdown.' Photograph: Agency Stock

Sara Phelan
Wed Apr 17 2024 - 06:00

The political and societal priority of “law and order” has focused on the issue of criminal justice; but it is of significant relevance to civil justice too; in particular, family law. Specifically, it relates to how people across the State come to the courts seeking law and order in one of the most personal and sensitive aspects of their life’s journey – when separating or seeking divorce or the regularisation of a cohabitation relationship breakdown.

Minister for Justice Helen McEntee last week welcomed the next step in the planning of a long-awaited dedicated family court in Dublin 7, as part of wider reform of the family justice system. Her statement noted that the new court building will be “a modern facility where family law cases can be held in a dignified, secure and non-threatening environment with a range of support services at hand”. The new package of reforms will “recognise that children and families should be at the centre of the system”.

But will it? And what about the experience of those in the throes of relationship breakdown across the country who won’t have access to a new court facility in Dublin 7?

The Family Courts Bill 2022, in the absence of pre-legislative scrutiny, intends to shoehorn about 6,000 intensive, multifaceted family law cases into an already overburdened District Court, which by its very nature is a court of summary jurisdiction. In practical terms that means the District Court is designed to deal with high-volume, quick-decision cases in a short period of time. In personal terms, for the people going to court under this proposed Bill, it will mean one of the most important, emotional and sensitive inflection points for families and children could receive a very brief and limited hearing indeed. Not exactly the law and order that they might have hoped for.

READ MORE

The president of the District Court, Judge Paul Kelly, told a conference last week that there were 547,519 new incoming matters before the District Courts in 2022, representing 85 per cent of all cases before the entire courts. Family law and childcare cases occupy significant time, he said.

It is precisely because of its current workload that the District Court has been called the “A&E of the justice system”. A&E is not where one goes to have complex surgery. Likewise, the District Court is not the appropriate venue to hear cases involving separation, divorce and cohabitation breakdown, cases that may involve significant complexity, cases that require a tried and tested Circuit Court procedure to achieve finality. The reality is that the District Court is not set up to hear lengthy cases and we firmly believe that if such cases are reallocated to the District Court they will be subject to repeated adjournments due to limited court capacity, and will run the risk of displacing the urgent matters that are the current bread and butter of the District Court’s business. This can only add cost and stress to all litigants.

A further nuance of the Bill – and perhaps as corrosive in terms of fairness and equity – is that, where a couple’s land, including a family home, exceeds €1 million in value, their case will continue to be heard at a higher jurisdiction, in the Circuit Court, the court that currently hears all separation, divorce and cohabitation cases, where the parties have the benefit of case management and a considered and dignified processing of their case. Why should those with land of less value not be afforded the same opportunity? The creation of a two-tier justice system is not a proposal that we believe to be either fair or wise.

One matter that has arisen in the context of this debate is the issue of consent cases; that is to say where the parties have agreed the terms governing their relationship breakdown. It has been argued that these cases can be appropriately and more effectively heard at District Court level. However, the experience of our members is that for the vast majority of consent cases to actually become consent cases, the legal process needs to be commenced. Any assumption that cases will arrive to District Court with terms already agreed – to the degree that is planned for in the Family Courts Bill – is not based on reality.

A summit is taking place on Wednesday organised by the Bar of Ireland and the Family Lawyers Association. A detailed survey of family law practitioners – solicitors and barristers working at the coalface of family law – will be published and the consensus is clear: the proposal to move cases involving relationship breakdown to the District Court would be a retrograde move, which will do a disservice to the people involved at one of the most stressful periods of their lives.

The Bar of Ireland, together with the Family Lawyers Association, are urging Government to remove this specific, and uncalled for, reallocation of jurisdiction from the Bill; and instead to prioritise increasing investment and reform at Circuit Court level.

To its credit, Government recognises the need for increased investment and we welcome the commitment that has been made in this area. We are also generally supportive of the reforms set out in the Family Courts Bill – with the exception of what is proposed in relation to cases involving relationship breakdown.

The practice of policymaking boasts the importance of putting the end user at the centre and building out reform from the experience of the citizen. The issue of law and order is not an abstract concept – the impact of this proposed change will be felt not only by separating couples and their families, but also by others who find themselves before the District Court for whatever reason. When making reforms and allocating investment, we are simply asking that Government take stock and listen to those of us who work on these cases on a daily basis. There’s time to reconsider and improve, and we are urging Government to pause and do just that.

Sara Phelan SC is chair of the council of the Bar of Ireland. The Bar of Ireland and The Family Lawyers Association are holding a Family Law Summit at 11am on Wednesday, April 17th in the Alex Hotel to outline their concerns and proposals in respect of this aspect of the Family Courts Bill 2022.

LATEST STORIES