Why we need a shorter waiting period for divorce

Protracted litigation only serves to increase hostility between a couple and their children are often caught in the cross-fire

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It was in 1986 that Garrett Fitzgerald made a brave first attempt to introduce divorce. The referendum didn’t pass. A second referendum a decade later did pass, but only by a whisker.

It was always anticipated that it was going to be a difficult referendum, so one of the chief provisions was a strict four-year rule between separation and divorce. This made the concept of divorce more palatable to the general public. The referendum carried, albeit by a narrow margin of 0.5 percent.

Divorce wasn’t presented as a speedy exit to a shaky marriage, which would have been anathema to the Catholic ethos of our country at that time.

Anyone who wanted to leave their marriage would have to wait four years between separating and divorcing. Not exactly a quick fix, but it struck the right balance between encouraging married couples to work on their union (and perhaps re-think their plan to leave) and allowing them to legally divorce.

While we can understand the soft introduction of divorce in 1996, times have changed. Now, 20 years on, I am advocating for change. My Private Members’ Bill would allow would-be divorce applicants to apply for divorce after two years instead of four.

Downright awkward

The practical implications of the four-year rule have proved cumbersome, draconian and downright awkward for those stuck in limbo between separation and divorce. The import of matrimonial litigation, by its very nature, is difficult for separating and divorcing couples. Why make it any more difficult?

If a married couple split, the only way they can regularise their finances, children, property and ancillary issues is to legally separate, either by deed or by issuing judicial separation proceedings.

Under the Judicial Separation and Family Law Act Reform Act (1989), either party can apply for a judicial separation as long as the couple have lived apart for at least one year. This process, however, comes at a cost both emotionally and financially.

It is no secret that high- conflict litigation, particularly over a protracted period of time, only serves to increase hostility between a couple. Their children are often the ones caught in the crossfire.

In this common-law jurisdiction, our family law system is adversarial in nature. Warring couples are forced to embark on litigation that is usually contentious. If they are not lay litigants, their solicitors and barristers will be pitted against each other in a quest to carve up the assets as expeditiously and as fairly as possible.

If they only had to wait two years for divorce, some might choose to bypass a legal separation altogether and go straight for a divorce. Two years, in my view, is a reasonable time and simply halves the current time limit.

Lowest rates

Ireland still has one of the the lowest marital breakdown rates in the world, at 9.7 per cent. I do not expect that to change if this Bill is passed. Nor should it. We must do all we can to assist married people and their families. But we also need to be more humane about how we treat those that do not or cannot be married any longer.

This Bill helps those couples who dread having to go back into court unnecessarily for a second time – a situation where the only person who benefits is the lawyer.

Aside from reducing the four years to two years, I would advocate that the other conditions for divorce, which are set out under section 5 of the Act, should remain as they are. Among them is that both parties agree there is no prospect of reconciliation and that proper provision is made for the married couple and their children.

Last year we looked after Irish same-sex couples in a very positive way and introduced a cross-party referendum. Now it is time to look after Ireland’s 246,000 separated couples (according to the 2011 census). They, too, need our attention and support.’

Josepha Madigan is a Fine Gael TD for Dublin Rathdown

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