The prohibition on a "clean break" between a couple who divorce creates severe difficulties for divorcees who wish to make a property settlement, a Supreme Court judge has said.
Mrs Justice McGuinness, said it was understandable that legislators would want to avoid a clean break when it came to issues such as maintenance payments and the custody of children, but it created huge problems for couples who wanted to resolve property matters.
The recently appointed Supreme Court judge said the divorce legislation had been "framed in accordance with political requirements rather than perhaps family law requirements". The legislators had feared that if there was provision in the legislation for a "clean break" between couples, the referendum on changing the law would not have passed.
"I can well understand why that was . . . but I do feel that it does create difficulties when it is made impossible for a couple to come to an agreement on property issues alone," Mrs Justice McGuinness said.
She said she also wondered whether some judges who spoke of the necessity for finality in divorce cases "actually read the legislation that makes it impossible for such finality to be achieved".
Mrs Justice McGuinness made her remarks at the launch of The Divorce Act in Practice, a collection of papers on the Act edited by Geoffrey Shannon, the Deputy Director of Education in the Law Society and lecturer at the Dublin Institute of Technology. The book, which was launched at DIT headquarters yesterday, is published by Round Hall.
She said the book brought back to her "some of the sheer horror of some of the family law cases" she had presided over. Many lay people had thought the film War of the Roses to be exaggerated, she remarked, "but every incident in it could be paralleled by myself or one of my colleagues in the Law Library".
Mr Shannon said the impossibility of obtaining an absolute divorce was a "distinctive and deliberate hallmark of Irish divorce law.
"The present reality is that a clean break from the spousal and family obligations of a marriage is not there simply for the asking . . . The fact that spousal support obligations continue completely unaltered in the context of divorce despite the termination of marriage seems indefensible."
Mr Shannon said it should be debated whether "it is now time to amend the law on divorce to give some degree of legal certainty to subsequent post-divorce relationships".
He said "factors beyond the textbook law" had been responsible for shaping and constructing the State's divorce law system "with the result that the manner in which remedies are currently being utilised may bear little resemblance to the intention of the legislature that passed the original statute".
In a paper included in the book, the EU Commissioner and former Attorney General, Mr David Byrne, writes that the "clean break" option "does have a number of serious downsides" and had contributed to an increase in poverty among women.
roddyosullivan@ireland.com
