Couples cautious on popping divorce question

It is five years since the nail-biting referendum count which produced the narrowest result imaginable and led to the introduction…

It is five years since the nail-biting referendum count which produced the narrowest result imaginable and led to the introduction of divorce.

The legislation took another 18 months to come into operation, but there has been no deluge of divorce applications since. The number is now running at about 3,300 a year. These are combined with a continuing demand for judicial separations, which are running at about 1,500 a year.

These figures do not represent the avalanche predicted by some lobbyists during the campaign. The reasons for this lie in the nature of the legislation.

The basic framework for divorce legislation in Ireland was written into the Constitution. A couple must be separated for at least four years and "proper provision" must be made for both spouses and dependent children.

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In subsequent legislation this was further spelled out. "Proper provision", if it is disputed, involves the court making a detailed examination of the financial situation of both parties, even if they have been separated for many years. It also allows for one or the other to come back to court years later and have the financial arrangements reopened.

Because the media and the public are excluded from family law courts there is no pool of public knowledge about how the legislation is working out in practice.

Written judgments are rare and only arise when the case goes to a full court hearing. The majority of divorces are settled without a hearing.

Nonetheless, family law practitioners, who deal with dozens of divorce cases a year, have begun to build up some impression of how the legislation is working out in practice.

"If the legislation had allowed simple divorce, there would have been floodgates," said Ms Muriel Walls, a family law solicitor.

"But the possibility of the reopening of the financial arrangements means there wasn't.

"If you could do what you can do in England, get a divorce and sort out the finances later, there would be a much greater number of divorces."

If "proper provision" for a dependent spouse and children is being thrashed out in court the issue of the discovery of documents arises. "You have to produce bank statements for the past three years, credit card statements, business accounts," she said.

The legislation does state that the court should have regard to any prior deed of separation. But on the other hand it says that the court must look at the financial situation of both parties at the time of the divorce, which appears contradictory.

Some judges have emphasised the former requirement, and have been loath to vary separation agreements. However, others have varied them significantly, making very substantial additional financial awards when granting divorce decrees.

According to Ms Inge Clissmann, a senior counsel specialising in family law, the term "in full and final settlement" is sometimes included in divorces settled out of court. But there is no certainty that they would be upheld by the courts if challenged.

There is concern at the lack of any "clean break" provision in the legislation, even where both parties want it. Indeed, the opposite is the case, according to Judge Catherine McGuinness.

In a judgment relating to a separation, but given after the introduction of the divorce legislation, she said: "The Oireachtas has made it clear that a `clean break' situation is not to be sought and that, if anything, financial finality is virtually to be prevented."

She added: "Such an approach unfortunately not only renders the court's task in making financial and property orders more difficult; it also, I fear, will create considerable difficulties for parties and their legal advisers when endeavouring to reach a settlement and avoid costly court proceedings."

If a case involving the reopening of a financial settlement was appealed to the Supreme Court, it could provide the basis for a clarification of law in this area.

But in general the legislation is working out well, according to Ms Clissmann.

On issues like custody, people are now much more aware of the importance of not drawing children into their rows, she said. "But all you need is one unreasonable person, and for them to involve the children, and the children are destablised.

"Divorce is not a rubber stamp. The whole purpose is to get things regulated properly. There are things that have to be sorted out into the long term, and you have to set out a new basis for proceeding in your life."

People were being very cautious, she said. "Divorce is not taking off as a fashion. It is not upsetting our culture. People are dealing with it in a cautious and responsible manner."