Family law specialist EUGENE DAVYcalls for an end to our two-step divorce law
IN IRELAND we have a two-step separation and divorce law which is enshrined in article 41.3 of the Constitution and section 5 of the Family Law (Divorce) Act 1996.
Under such provisions, divorce proceedings cannot be started until a couple have been living apart for a period of, or periods amounting to, at least four years during the previous five years.
Consequently, when a marriage breaks down, couples are confined to regularising and legalising issues relating to property, finances, children and other matters in the context of either a negotiated separation agreement or a decree of judicial separation obtained in court. If matters are resolved in the context of a separation and if one or both parties subsequently want a divorce, further proceedings must be issued.
However, they cannot be issued until the couple have been living apart from one another for four years.
While some divorce cases do proceed with co-operation and agreement from both parties, there are many cases which become very protracted and which proceed in a very contentious manner.
Quite often, such divorce cases are preceded by a contentious and protracted judicial separation case some years before.
In some of them there is an appeal of the judicial separation case before the divorce case is heard.
At present there is a judgment pending in the High Court relating to a divorce case which was heard over a period of 31 days in circumstances where there had been a previous judicial separation hearing in 2005, also heard over a period of several weeks.
Furthermore, an appeal of this judicial separation took several years to come before the Supreme Court due to the huge backlog of appeals pending before the court.
The ongoing nature of contentious and protracted litigation in matrimonial cases has a very damaging effect on the health and wellbeing of the parties involved and on their children.
Pre-existing problems are exacerbated, and invariably individuals cannot get on with their own personal lives. In addition to the very emotional and personal consequences of such litigation, the financial resources of individuals and their families can be substantially depleted by costly litigation.
In addition to the problems caused by this two-step separation and divorce process, problems and injustices arise from the requirement that the spouses must satisfy the court that they have been living apart for a period of, or periods amounting to, at least four years during the previous five years prior to the commencement of the proceedings.
There is no definition in the Family Law (Divorce) Act 1996 or elsewhere of what is meant by “living apart”.
There have been occasions when the courts have accepted that the parties have been living apart for the requisite period of time when they have in fact continued to reside together in the family home.
However, generally speaking, in such cases there is evidence that the parties have been sleeping in separate bedrooms and living in separate areas of a large house for the requisite four-year period.
The 1996 Act and its application thus discriminate against people of modest means. Most people of modest means do not have facilities within a family home to establish their own living quarters and to live apart from one another. Invariably they must continue to share the same bedroom, and quite often the same bed.
It is ironic that following the recently enacted Civil Partnership and Certain Rights and Obligations of Co-habitants Act 2010, civil partners can obtain a decree of dissolution in respect of their civil partnership if they have been living apart from each other for a period of, or periods amounting to, two years during the previous three, whereas the required period for spouses to obtain a divorce is four years living apart.
Consideration should be given by the Government to reforming our present law by abolishing our two-step approach to separation and divorce. It should consider introducing a divorce law whereby couples could be entitled to apply for divorce on the grounds that their marriage has been irretrievably broken down for in excess of one year. Alternatively, a system could be introduced whereby a separation could automatically change to a divorce after a certain period following a legal separation.
There are various ways in which our present separation and divorce law could be reformed to ensure that if matters are going to be contested there would be one contested case rather than two contested cases: a separation case followed some years later by a divorce case.
One way or another, an amendment to the Constitution is essential to facilitate any substantive legislative change to the present Act of 1996.
The Government has already indicated its intention to have several referenda to amend a number of articles of the Constitution, including articles relating to the Seanad, children’s rights and judges’ pay.
Now is an opportune time to have a referendum to amend the provisions of the Constitution relating to divorce.
In this regard it is suggested that the provisions of the Constitution relating to this should simply be deleted altogether.
This would enable our legislators to introduce, debate and enact divorce legislation which would be more conducive to bringing about a greater degree of finality for couples and which would allow for couples doing so in a far more dignified manner than at present.
Eugene Davy, a partner in Hayes Solicitors (Dublin), has been specialising in family law for more than 30 years