Family law ‘bleak territory’ before 1989 act

Greater predictability about financial provision could help more divorce cases settle without litigation, Ms Justice Nuala Jackson has told the Law Society Family and Child Law Conference (25 September).

In her keynote speech, the High Court judge reflected on 30 years of divorce in Ireland, examining progress since the Judicial Separation and Family Law Reform Act 1989 and possible future changes.

These latter, she said, should focus on greater predictability, earlier dispute resolution, and greater recognition of the decisions made by informed spouses.

Remarking that she began practising 17 days before the act came into effect in October 1989, Judge Jackson said that, arguably, Irish family law did not exist before the act.

Family-law disputes arose, but the applicable legal principles were cobbled together from different pieces of legislation, and there were many gaps.

From conversations with those practising in family law before the 1989 act, Justice Jackson said “it was a bleak territory”. 

Relationships irretrievably broke down

“The elephant in the room was the fact that relationships irretrievably broke down, and that people wished to move on and to have new relationships thereafter,” she added.

The 1989 act provided the foundations of a comprehensive framework for dealing with marital breakdown.

“I think its importance cannot be overstated,” the High Court judge said.

Divorce came into effect in 1997, following the 1995 referendum. 

In passing, Justice Jackson flagged the disparity between the constitutional wording of article 41.3.2° and section 5(1)(c) of the Family Law (Divorce) Act 1996 regarding proper provision. 

An independent child was constitutionally recognised but omitted from the statutory requirement – a meaningful legal distinction, the judge said.

 “I think it's worth a little bit more thought than it's sometimes given,” she added.

“My own view is that proper provision involves essentially asking three questions: where will the parties live, what will they live on in the short term, and what will they live on post-retirement.”

Those three considerations were the “three legs of proper provision”, she said, although the answer necessarily depended on the circumstances of the individual family.

The judge said that, like most things in life, divorce, if properly used, could contribute most positively to society and to our families.

“But of course it is not without its negative parts as well,” she said. 

“Perhaps some of my judicial colleagues will say I'm going soft in my old age, but I don't think you ever, as a judge, grant a decree of divorce without a kind of sadness.”

“The one single thing that really primarily assists a case in resolving, in my view, is if you have predictability.”

A significant amount of contested divorce litigation now concerns whether assets should be included for consideration.

While Ireland did not have the English concept of matrimonial and non-matrimonial assets, a distinction had developed in practice, she said.

Asset categories

Greater clarity on how different categories of assets should be treated would help parties assess their cases and reach agreement.

The nature of an asset also matters, rather than simply its monetary value.

She suggested that greater certainty in these areas could lead to more compromise, and she argued for greater recognition of spousal autonomy when considering agreements and settlements.

While the court had a role in protecting children and ensuring proper provision, she said, the parties’ own views about what was proper should receive considerable weight where adults had reached their decision freely, with full information and disclosure.

Alternative dispute resolution (ADR) is another area where the system could improve, the judge said.

There has been significant progress, particularly in mediation, but ADR should take place earlier.

Financial disclosure and arrangements for mediation should proceed in tandem, rather than disclosure being completed only after a hearing date had effectively become the next available mediation date.

She suggested that “nudge points” could be identified to encourage parties to engage in ADR before court resources were committed to a case.

“If you can resolve your dispute otherwise than through litigation, that is a positive thing,” she said.

Impact

She also identified the impact of family breakdown on children as an area where earlier intervention was needed.

The solicitor was often the first port of call in family litigation and, therefore, had an important role in ensuring that parents were made aware, at the earliest possible stage, of the potential harm to children from acrimonious litigation, and of available co-parenting support.

The Family Courts Act 2024 provided an important framework for that development, she said.

“Of course we must change; of course we must go forward; of course we must embrace doing it better,” she said.

“But in doing that, we shouldn’t dismiss or underestimate how far we’ve come.”