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Foreign divorce a ‘trap for the unwary’

08 May 2019 / family law Print

Foreign divorces a ‘trap for the unwary’ – family lawyer

A ‘yes’ vote in the upcoming divorce referendum could mean less work for lawyers as clients may choose to bypass separation, the launch of the ‘Lawyers For Yes’ campaign heard last night.

However, the biggest enemy in the push to reduce divorce waiting times is apathy, Dublin-based family lawyer Keith Walsh (pictured) said.

He said now is the time to talk about reform of the family law system with huge issues around available resources and the need for specialist courts.

He was speaking at the launch at Blackhall Place last night by prominent lawyers of a campaign for a yes vote in the 24 May referendum.

Voters are being asked to change the Constitution of Ireland in relation to divorce.

Issues

The proposal is about two issues, namely how long people must be living apart before applying for a divorce, and the recognition of foreign divorces.

There will be one question on the ballot paper and voters can either vote yes to allow both changes, or no to reject both changes. Voters cannot accept one change and reject the other.

The launch heard that a lack of opposition on the issue has the effect of stymieing debate.

Solicitor Keith Walsh urged yes campaigners to take to social media to get the vote out.

Compromise

He said that initial provisions for a four-year wait for divorce in Ireland were a political and legal compromise and now is the time to get the law right, not for lawyers but for clients.

He said a yes vote will mean less work for family lawyers as it will reduce the amount of legal work that needs to be done.

“Hopefully, a two-year divorce waiting period will cut out a lot of the need for legal separations or judicial separations because people will hold on [for divorce],” he said.

Trauma

“It certainly will stop people going through the trauma and difficulties of two court processes,” he said.

“Having to go through two contentious court processes, particularly in a family situation, where the resources of the family are being swallowed…even where there is legal aid on both sides the emotional resources are being swallowed.

“That is something that we can’t stand for,” he said.

Campaigner Catherine Ford BL said that the Constitution is the place for precise details about the structures of how a country is run. Other matters regulating the day-to-day running of the state should be left to be dealt with by the legislature and parliamentarians, she said.

“A constitution is not the appropriate place for prescriptive regulation of the day-to-day affairs of citizens or residents of the country,” she continued.

The existence of no-fault divorce in Ireland takes the contention out of divorce law, Keith Walsh contended.

Solicitor Muriel Walls revealed that she is already urging clients in her letters of advice to get out and campaign on the issue.

Difficulties

Walls described difficulties around the recognition of foreign divorces, pointing out that in the United States, each state is considered to be a separate country and is a separate domicile area for the purposes of divorce law.

While this may seem academic, she described the status of foreign divorces as “a trap for the unwary”.

“At least three or four times a year, I have some distraught spouse-to-be telling me that they have been told by the registrar, that their former divorce…is not capable of recognition.

Mess

“They have a date set for this wonderful wedding and they’re in a mess.”

If the foreign divorce is not capable of recognition then the advice is to apply for an Irish divorce which can mean trying to find an out-of-contact spouse.

“It’s very unfair on people to have this arcane rule they don’t know about,” she said.

The launch heard that when divorce was initially proposed in Ireland in 1986, family law was in an undeveloped state.

Misplaced

Barrister Peter Ward recalled that in 1986 the belief that Ireland was “sufficiently liberal’ to allow divorce proved to be fundamentally misplaced when the vote went 64% against the proposal to remove the constitutional ban on divorce.

He said there was considerable concern about avoiding the same result when the campaign for divorce moved into the 1990s.

Protection

“That was why much work had to be done in terms of legislation and the passing of the 1989 Judicial Separation and Family Law Reform Act was essential in being able to present an argument to people that there was sufficient protection for parties to marriage breakdown as regards to property division,” he said.

He said that concern had focused on property provision more than it ever did on individuals and children.

Weapons

“Rows about the disposal of family property and income were essential weapons in the army of those who resisted change,” he said.

It was precisely to avoid the introduction of quick divorce that the four-year separation period was inserted into the constitution, he said.

“At the time we were well aware, those of us who were campaigning for  yes vote, that it wasn’t appropriate to start attempting to put the detail of a divorce law into the constitution itself and that it wasn’t appropriate to have specific pre-conditions built in…but it was essential that quick and easy divorce be avoided."

Ward said it was now time to introduce a ‘tidying-up’ mechanism but to leave the details of divorce to the Oireachtas.

He said he was optimistic that this would be the “least controversial” of referendum campaigns in recent decades.

Gazette Desk
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