Analysis: Divorce in Ireland is not as simple as just signing a piece of paper and moving on
What comes to mind when you think of divorce? With the proliferation of American dramas on Irish television, you might imagine a couple signing papers in a boardroom, surrounded by lawyers. Although it is a simple procedure, it is unrelated to the Irish divorce system.
The 1995 referendum that removed the ban on divorce from the Irish constitution passed by a narrow margin after a similar referendum in 1986 failed. The resulting Family Law (Divorce) Act 1996 is a conservative piece of legislation that creates a number of legal bases. A number of hurdles that spouses must overcome in order to finalize a divorce, ostensibly to ensure that the marriage cannot be “salvaged.”
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From the RTÉ archives, the 1995 review of RTÉ Radio 1 features Archbishop Desmond Connell, Dr Thomas Flynn, Michael Woods, Bertie Ahern, Richard Bruton, Rory O’Hanlon, Prioncias de Rossa, Oona Our contribution looks back at that year’s divorce referendum.Bean Mick Masuna and John Bowman
The 2019 referendum shortened the amount of time spouses must live apart before applying for divorce, and despite Ireland’s changing social landscape, divorce laws have been revised for the last quarter of a century. Not yet. Today, for a divorce to be finalized, three prerequisites must be met: two years of separation, proof that there is no prospect of reconciliation, and “adequate provision” for the spouse and dependent children. It depends on
So why is it so difficult to get a divorce in Ireland?
Obligation to attend court
The Irish Constitution provides that “a court designated by law” may grant a divorce, provided there is no prospect of reconciliation and “appropriate provision” is made for dependent spouses and children. Only if you agree.
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Separation and divorce advice from lawyer Orla Sharkey on RTÉ Radio 1’s Today with Claire Byrne
Putting aside the question of whether it is appropriate for a court to determine the possibility of settlement, the safeguard of “adequate provisions” appears at first glance to be reasonable. But in practice, this means that all couples seeking divorce must go to court, even if they have agreed on terms or gone through mediation. This overloads family court lists and creates unnecessary costs for divorcing couples.
secret
Our Constitution states that justice must be done in public, but the “in camera” rule provides that family law cases can be held behind closed doors to protect the parties involved.
However, the “on camera” rule contains vague language and harsh penalties. This means that very few court reports are conducted in family courts. Additionally, most judges do not have time to write decisions because circuit court lists are overloaded.
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From RTÉ Radio 1’s Today with Claire Byrne Lawyer Marion Campbell says divorce cases are on the rise during the pandemic
As a result, there is little data on divorce proceedings in circuit courts, where most divorces are granted. We do not know how most cases are conducted or decided. We don’t know why or how orders are being made, how long lawsuits are taking, or what issues are causing the most conflict.
vague process
The Joint Committee on Justice and Equality said in its 2019 report that there appeared to be no consensus among judges and practitioners about how family law proceedings should be conducted. In addition, the “in-camera” rule contributes to a significant lack of transparency in the system.
Understandably, many litigants feel unable to navigate the system without representation. Unrepresented lay litigants can become overwhelmed or misunderstand what they are required to bring to court, further delaying the process.
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From the RTÉ Today Show Podcast: Why are Irish divorces on the rise in the US? With panellists Eileen Hickey, Shane Ross and Stephanie Preisner
In its 2022 report on the Family Justice Consultation Process, the Ministry of Justice said litigants in family courts face delays, high costs and a traumatic process.
unpredictable results
Ireland has a common law system, a set of rules and principles developed by judges over centuries. Lower courts (district courts, circuit courts) follow the precedents of higher courts (high court, supreme court).
Unfortunately, this system has proven ineffective in divorce cases. High court and Supreme Court decisions usually involve wealthy families and complex legal issues. These are of limited value in most “typical” family law cases heard in circuit courts.
Under current law, judges are given significant discretion in redistributing assets with little policy guidance and no proper precedent to follow. The limited data we have indicates that this can have unpredictable consequences for divorcing couples.
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RTÉ Radio 1’s Sunday show Miriam, Helen Goldin Mountcashel, Patrick Bergin and Noel Howard discuss the 19th century divorce case between Lady Louisa Moore Morgan and Captain Richard Morgan that caused a sensation in Ireland. Than
sex
Although not a hurdle to divorce, gender can affect the outcome. In Ireland, gender expectations and the gender pay gap are pushing women away from careers and education, reducing their economic mobility. As a result, women are more likely to require financial assistance when a relationship breaks down.
In 2017, the United Nations Committee on the Elimination of All Forms of Discrimination against Women expressed concern about limited data on spousal retention in Ireland. The little data we have indicates that spousal maintenance award rates are very low and there is great inconsistency in how they are calculated. This is likely to maintain gender-based economic inequality between men and women in Ireland.
What is happening with the reforms?
In 2022, the Ministry of Justice launched the Family Justice Strategy 2022-2025, which aims to create a modern family justice system. In its 2022 report, the Family Justice Monitoring Group highlighted the information gap in the current system and the need for research and data collection to foster reform.
However, existing reform proposals, like the Family Courts Bill 2022, only focus on reforming the family justice system. At this time, reform regarding the substantive law of divorce is not being discussed.
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The views expressed here are those of the authors and do not represent or reflect the views of RTÉ.