The cost of ensuring the divorce amendment to the Constitution was passed has been the imposition of a two-stage divorce process for Irish couples. This can mean a duplication of legal expenses and a rerun of a court battle.
Following the defeat of the first divorce referendum in 1986, the then government designed an amendment for the second one that would reassure voters that divorce would not be entered into lightly. Thus the Constitution states the dissolution of a marriage may be granted only when the couple have lived apart for four out of the preceding five years, there is no reasonable prospect of reconciliation and “proper provision” has been made for the spouses and any children, or any other person prescribed by law.
The defeat of the first divorce amendment had another consequence: the enactment of the Judicial Separation and Family Law Reform Act, 1989, which allows the courts to make orders on property division and various other financial matters along with granting a separation.
A judicial separation granted by a court or a legal separation which is negotiated by lawyers can be obtained a year after a couple separates, and even less if exceptionally bad behaviour can be proved on the part of one of them. In practice, the vast majority of judicial or legal separations are granted following a year of separation.
Between 1989 and 1996, when divorce legislation was introduced, thousands of people availed of judicial or legal separation to resolve the practical issues that arise from marriage breakdown.
This continued after the introduction of divorce. Four years is far too long to wait to resolve such matters, so it is inevitable that in many cases couples whose marriages break up obtain either a judicial or a legal separation, whereby custody of, and access to, children, as well as arrangements concerning property and maintenance for the children and the dependent spouse, are sorted out.
Three or more years later, especially if one party is in a new relationship and wants to marry, they may go to court seeking a divorce. In most cases, such divorces are largely formalities, turning the existing arrangements into a decree of divorce.
According to the Courts Service, the courts have granted an average of 925 judicial separations for each of the past four years. The number of divorces during those years has averaged fewer than 3,000. Because a legal separation is a private contract, no figures exist for the numbers entered into annually, but there are likely to have been thousands.
Given that the Constitution requires that “proper provision” be made before granting a decree of divorce, the court can examine what that provision is and, if it sees fit, amend it. This has given rise to a number of “second-bite” divorce cases, where one party sought to alter the terms of the separation agreement or judicial separation, increasing or reducing the money awarded. Both the boom, where one party could have become extremely rich following separation, and the recession, where the opposite happened, fed this tendency.
Most divorces take place in the Circuit Court, where, due to the in camera rule, it was not possible until last year to find out what happened. However there have been a number of written judgments in the High Court and Supreme Court which have set out the parameters of the law. In general, the courts do not welcome people who look for an improvement in their circumstances if they consider they were well provided for in the first settlement.
In one Supreme Court case, a woman sought a “property adjustment order” to increase the money she got from her husband when he sought a divorce in 2003. They had entered a separation agreement 10 years earlier with very detailed provision for the division of the family assets, primarily the land they owned jointly. The value of the settlement was estimated by the Supreme Court as €2 million each. There were no children.
However, after the separation, their fortunes diverged, with the husband becoming very wealthy, while the wife’s enterprise failed. The Supreme Court found that the separation agreement “undoubtedly represented proper provision for both parties”. The author of the lead judgment, Mr Justice Adrian Hardiman, said the wife’s subsequent failure to prosper was not due to any incapacity on her part, but rather to her own incompetence.
In another case, the court substantially increased the provision made for the wife, but here the separation agreement was 20 years old, there were six children, and the wife’s work in the home had freed the husband to pursue his business interests.
These are just two of the cases that show the capacity of our divorce regime to be long, cumbersome and expensive, even though most separations are settled without a full court hearing and most divorces do not seek to revisit them.
However, as Mrs Susan Justice Denham pointed out in another divorce judgment, the people did not vote for a "clean break"-type divorce in the second referendum.
The people may have accepted the view at the time that the amendment would force people whose marriages were failing to think carefully before seeking a divorce, but in reality they imposed on separating couples the need to sort out their affairs through one legal procedure while waiting for the time to elapse in order to embark on another.
The only solution to this issue is another divorce referendum.
Carol Coulter is the former Legal Affairs Editor of The Irish Times. She is currently director of the Child Care Law Reporting Project