Every day in Phoenix House in Dublin’s Smithfield, couples wishing to divorce collect at 10am in the lobby. Some have legal representatives, others do not. They wait, some well into the afternoon, for their cases to be called in one of the three courtrooms in the building. They are seen by Circuit Court judges; divorce and judicial separation are applied for at Circuit Court level, although occasionally high net worth individuals go directly to the High Court.
A couple may be legally divorced once they have lived apart for four years. In Ireland, a husband or wife does not need to prove, for example, adultery or cruelty. It is a “no fault” system, but people still try to air their partners’ perceived faults in court.
Shortly after 10am, the judge runs through a list of the cases, prioritising short matters and putting longer cases to the end of the list. Then the first case is called. Spectators cannot attend, although since January 2014, journalists may report on proceedings with strict limitations to protect anonymity. Barristers and solicitors are less formally dressed at family court and judges do not wear wigs and gowns.
Each set of divorce proceedings fits somewhere on a spectrum between civility and acrimony and each couple’s experience of the courts depends on the choices they make about their approach. Divorce cases can take less than five minutes or more than five years. In one courtroom earlier this year, a judge finalised three divorces and two judicial separations in 15 minutes. Another case was in its fourth year.
Not all divorces are fraught, particularly among a certain age group, often called the “silver splitters”. They have often both realised that they can no longer stay together and come to court with agreements in writing. Younger couples, with all the complications of maintenance, custody and access to children, may also arrive in court with an agreement.
This may have been produced through mediation or negotiated through legal representatives. Negotiations often only occur just before entering court, but do take the stress out of the case for both parties.
Unhappy separations, where one or other party feels aggrieved by what they did or didn’t get, can drag on until divorce time. Conversely, separations that leave husband and wife feeling things have worked out as well as possible pave the way for less acrimonious divorces.
Contentious divorces make for ugly scenes. Parties cannot keep from arguing in court, backbiting and interrupting each other. Even those represented by solicitors and barristers sometimes break out into open warfare and quibble over the smallest details. Sometimes adversarial lawyers make the situation worse, by for example, withholding documentation until the last possible moment.
Every detail may be argued over: “Dad will collect Johnny at 6pm at the petrol station on the main road. He will take him from mother’s car and will not speak to mother. He will text mother no less than two hours before the meeting if he cannot make it.” In such cases, emotions run high. At all costs one partner must win, but in reality nobody does.
At a conference on children in family breakdown proceedings last year, Mr Justice Michael White said that in quite a lot of high-conflict cases, one party had a "narcissistic, self-referenced personality". In his experience, these were men more than women. "It is very difficult to get through to people who don't see the other side of the argument, who reference life to themselves completely and don't see the damage that is being caused," the judge said.
He also felt overprotective mothers were a problem. “They feel they know what’s best for the child and court orders are then undermined because they don’t feel that the orders . . . are in the interests of the child,” he said.
He recommended the introduction of mandatory alternative dispute resolution processes, such as mediation, for couples before they came to court.