Adversarial legal system is ’no place’ for divorce

A new book says couples should be compelled to take part in parenting plans and mediation before issuing divorce proceedings

Family law solicitor Helen Collins is at her practice in Skibbereen, Co Cork, chatting informally with two clients. Both of the young women have lost their partners and are there for legal advice. Both are upset. One of them is telling the other two how important the support in the community has been since her partner died.

“People will actually cross the street to commiserate with me,” she says. The other woman, whose partner has left her, remarks: “People will actually cross the street to avoid me.”

“The question of shame, embarrassment and failure plays a big part,” Collins says, recalling that exchange.

“In Ireland we say we’re really good at dealing with death. With divorce, I think it’s that we don’t know what to say and don’t know how to behave. We’re a bit young at that.”

Divorce is a phenomenon that is still relatively new to this State, having been legal since just 1996. Collins says there are “certainly” women clients of hers who would say the stigma of divorce still exists today.

“I think people find the concept of separation and divorce much more embarrassing than they do death,” she says. “There seems to be something cleaner and more straightforward about being a widow than there is about being a divorced person. Hopefully that’s easing.”

She says the options facing a couple seeking to divorce can be boiled down to two options: "either you go forward by agreement or you end up in court". Collins has recently published a book, A Short Guide to Divorce Law in Ireland , which sets out "signposts" for couples in this position.

Launching the title earlier this year, Minister for Justice Alan Shatter, a family law solicitor himself, said it recognised "the impact of emotion on couples' responses to the legal aspects of the divorce process". This is one of the key issues for Collins, and the book seeks to bridge the gap between complicated legal situations and the emotional "wasteland" couples find themselves in, as Collins describes it.

“When somebody comes through the door to me, they are usually shell- shocked,” she says. “One person has come to another person in a marriage and said ‘I want to leave’. Most people, when that happens to them, are in a state of total shock.

"Some of my clients in that state of shock describe it as like being in a parallel universe. That's where the bereavement comes in. It is a full-blown bereavement. It's about as devastating a situation as you can imagine. You have at least one person, if not both, grieving and in shock, going through all of these hugely strong emotions – and you're trying to make decisions.

"Widows and widowers are told not to make any big decisions while they are grieving. But when somebody comes into me, I'm probably asking them to make some of the biggest decisions of their lives when they're least able to make those decisions. You can see very fast where the wheels might start to come off the wagon.

“If you have one person who has been thinking about this for a while, who is more prepared and wants to move along, they might say to the other person ‘well, why aren’t we making decisions about the house and the children etc?’ The person who is ready may feel the other person is dragging their feet and then you end up possibly with court proceedings, which you can’t get your head around. It’s a very fraught and difficult situation.”

Collins believes the adversarial system is “no place” for family law and the divorce process due to the “emotional trauma” of the events involved. “Family law should not be in the adversarial legal system. The whole thing, by virtue of the event, and the nature of the event, and the devastation of the event, and all the attendant massive shock and psychological impact of the event, is not conducive to being in an adversarial legal system.

“You need people working in that process who know when it is the high emotions that are driving what is going on. The reason I wrote this little book was to try and defog some of that. That was my whole purpose in writing it – to try and create a comfort and some basic signposts in that total wasteland that you find yourself in.”

Collins favours a system that would see couples seeking divorce “compelled” to take part in parenting plans and mediation systems prior to issuing court proceedings. “There’s a big role for the couple to understand what is happening to them and to understand their responsibility as parents to separate their battle from their children. That’s vitally important and a lot of work needs to be done to help people going through this process to understand that. I think we could have a much more family supported system.

“The most important thing is that the couple separate the battle from their children, because if we don’t help couples to do that, we’re causing damage to our kids, and if we’re causing damage to our kids, we’re causing damage to our society. I want to see an obligation on people to do that. In the Australian system, you can’t apply to the court on any question of parenting without first of all having to go through a dispute resolution system.

"Two parents may decide that their marriage is over. That does not mean the family is finished. The children see their parents as parents forever. The couple have changed their relationship from being husband and wife but must go forward as co- parents of the children. That seems to be the piece that an awful lot of people miss.

Relationship breakdown
"I'm not saying you can legally oblige people to do that – I think you have to educate people to do it. First and foremost, that they understand they remain parents forever and have to find a way of going forward as co-parents because their children need it. It's essential that they have it.

“The compulsion part has to be that the court doesn’t allow you to issue proceedings before you go into a dispute resolution programme first to work out a parenting plan for your children. When you’ve worked that out, or else when your mediator certifies you’re going nowhere on it, only then can you go into court.”

Launching Collins’s book, Shatter said the law “urgently” needed reform and that the Government aimed to publish a general scheme for a Family Law Courts Bill in the autumn with a view to enactment in the first half of 2015.

“I share Helen’s view that adversarial approaches are not always the best solution to relationship breakdown,” he said. “The Government has committed to the establishment of a distinct, separate and integrated system of family courts.”

Shatter said work was being done to develop a concept for the Family Court which used the existing court structure “whilst ending the current jurisdictional fragmentation and providing for a unified and comprehensive approach”.

He said most substantive family law cases, including those relating to divorce and separation, would be at the Circuit Court level, with more complex cases being dealt with at the Family High Court level.

“I also envisage integrated family court offices at regional level which will have ancillary facilities for the assistance of litigants including ready access to alternative dispute resolution,” Shatter added.

A Short Guide to Divorce Law in Ireland by Helen Collins is published by Cork University Press

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