Divorce option has brought no rush to courts

More than 8,000 people have sought a divorce since it became available three years ago.

More than 8,000 people have sought a divorce since it became available three years ago.

While this is a significant number, it falls far short of the tens of thousands predicted to seek this remedy when the divorce debate was taking place five years ago. Available statistics at that time suggested there were some 80,000 people in the State whose marriages had broken down. The examples of Spain and Italy suggested that when divorce became available, there would be a rush to the courts by those who had had no remedy before.

Clearly this has not happened. The rate at which people are seeking divorces is running at about 3,000 a year. There was a rise in the number of applications in the first three months of last year to 931, up from 760 for the same period the previous year, but this was not sustained throughout the year.

One of the reasons advanced for the increase at the beginning of 1999 was the allocation of two days a week by the Dublin Circuit Court to hear applications for uncontested divorces. Undoubtedly this has contributed significantly to the increase in the number granted (as opposed to applications made) in 1999.

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A small number of divorces are processed through the High Court every year, when large amounts of money and complex issues are involved.

Another significant fact to emerge from the figures is that people are turning to judicial separation in almost the same numbers as they did before divorce was introduced. Last year 1,566 people sought this remedy, a similar figure to the previous year, and only slightly less than in 1996, when divorce was not available and 1,740 people sought judicial separations.

What this suggests is that people whose marriages have broken down are still turning to judicial separation as a way of solving all the pressing problems which ensue. Due, no doubt, to the long delay in the introduction of divorce while marriages continued to break down, the law on judicial separation in Ireland was very comprehensive and offered solutions to all the problems, except the right to remarry.

In order to qualify for a divorce the couple must have lived apart for at least four years. This is a long time to wait to settle questions like who owns or lives in the house, what maintenance is paid to whom, custody of and access to children, and other issues. Judicial separation allows these to be dealt with as soon as the couple agree that the marriage is over.

The divorce can then be sought later. If the couple are agreed on the terms of the separation, the divorce can go through uncontested.

So what the figures are probably showing is a rate of marriage breakdown that is growing, but not astronomically. The majority of the applications for judicial separation, and a minority of those for divorce, will reflect a marriage that has broken down in the fairly recent past.

Most of the applications are likely to be from people whose marriages ended many years ago, who may have legal separations, and who now want to remarry or to finalise the arrangement, and so seek a divorce.

Because of the absence of any media reporting of divorce proceedings (due to the in camera rule governing family law cases), it is not known how many divorces are uncontested and how many are fought out in court, leading to case law on issues like property and custody of children.

Circuit court judgments are rarely written, so little case law exists in this area, and, in the absence of newspaper reports on the cases, both legal practitioners and the public are in the dark.

The exceptions are High Court cases, which are normally written judgments and are published in the law reports without identifying the parties. They are then in the public domain. But these are, of their nature, the exceptional cases.

These are only highlighted by the media when something dramatic emerges, such as a very large financial settlement. Issues of more fundamental importance to society - for example, what happens to children - remain unreported. Equally there is no volume of reports on what levels of maintenance are decided upon in more routine cases.

All in all, however, there is some comfort from the statistics from the first three years of divorce in Ireland. A significant number of people were in need of this legal remedy, and are seeking it. But it has not signalled the collapse of Irish marriage and the end of family life, and there is no sign, at the moment, of a headlong rush to the divorce courts.