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Law Society backs divorce reform following lengthy empirical research

02 May 2019 / family law Print

Law Society backs divorce reform following lengthy empirical research

A major new report by the Law Society on divorce law reform is published today.

Divorce in Ireland: The Case for Reform is a unique piece of empirical research on divorce in Ireland, 23 years on.

The report will be launched this morning at the Law Society of Ireland in Blackhall Place, with a keynote address by Minister for Culture, Heritage and the Gaeltacht, Josepha Madigan.

The Law Society supports the Government’s proposal to reduce the minimum living apart period for spouses seeking a divorce to a minimum period of two years in the upcoming referendum. 

Living apart period

The Law Society supports the proposal to remove, by referendum on 24 May, the minimum living apart period for spouses seeking a divorce from the Constitution, with a provision to allow the Oireachtas to amend section 5(1)(a) of the Family Law (Divorce) Act 1996 to reduce the minimum period to two years.

The Law Society makes 11 recommendations for reform in the report, principally authored by solicitor Dr Geoffrey Shannon (pictured) of the Law Society Family and Child Law Committee.

The report contains statistics and case details from the busiest family law courts across the country.

Radical change

Dr Shannon said “Divorce has now been in operation in Ireland for over two decades. During that time Ireland has witnessed radical change that has resulted in a more secular, more modern and less traditional society.

“The Council of the Law Society, having considered the report, decided to call for a yes vote in the referendum due to take place later this month.

“While each case is unique, the current requirement to live apart for a period of four years prior to the institution of divorce proceedings may now be considered too long.

“It may result in a duplication of legal expenses and protracted proceedings, where parties are involved in both judicial separation and divorce proceedings over time.”

According to the Central Statistics Office, the number of divorced people in the State has increased from 35,100 in 2002 to 103,895 in 2016.

Rise

Dr Shannon continued “Undoubtedly, the rise in the number of divorced persons also reflects an increasing acceptance of divorce within Irish society as a remedy to an irretrievably broken-down marriage.

“The questions facing Ireland now relate to what type of legal framework and practice should underpin its law in this arena. What type of divorce law and practice do we want?

“The Law Society has conducted this research in order to answer these difficult questions by looking at the evidence.”

Recommendations for divorce reform

As well as supporting the proposal to amend Article 41.3.2 of the Constitution, noting that such a change would require a constitutional referendum, in Divorce in Ireland: The Case for Reform, the Law Society also recommends that:

  • A specialised family court structure should be established,
  • A definition or definitions of “living apart” should be developed,
  • A set of principles for the determination of ancillary reliefs should be developed, to include all maintenance orders, lump sum payments, settlements, property adjustment orders and pension adjustment orders,
  • Provision for “clean break” divorces should be put in place, in appropriate cases,
  • The law should be reviewed to allow for the development of pre-nuptial agreements that are valid and enforceable,
  • A review of the issue of maintenance should be prioritised,
  • The Succession Act 1965 should be reviewed, with particular regard to the introduction of divorce and the consideration of “clean break” scenarios,
  • A coherent legislative system for the recognition of foreign divorces should be drafted,
  • Alternative means of dispute resolution should be actively promoted and facilitated, wherever possible, and
  • Court reporting and research rules should be amended so that any bona fide researcher with a connection to the legal profession can carry out research on family law cases.

Consequences

Dr Shannon writes in his report that “Divorce severs a marriage and brings with it a myriad of legal, taxation and personal consequences.

“While difficulties have arisen in some areas of divorce law practice and procedure, it is also the case that our system of divorce is expressly designed to arrive at the fairest possible outcome for both spouses and the children, following a review of the particular facts and circumstances of each case.

“While criticisms are often levelled at the entirely subjective nature of this exercise, which leaves considerable scope for a variety of outcomes and diverging judicial discretion, it is also the case that such a system is arguably the best approach in the unique circumstances of divorce.

“Within the current framework, however, clear and practical guidance with regard to the application of the statutory criteria for fair distribution, and the making of successive applications for provision, would certainly benefit both practitioners and clients alike.

Core

“The Law Society also believes that practical considerations are at the core of this matter. These are key to the proper functioning of divorce in practice and lie with the provision of adequate resources and facilities to both ensure that cases do not take several years to reach a conclusion and that they do so in settings which befit the private nature of family law proceedings.

“The role to be played by alternative dispute resolution is also important in this context,” he concludes.

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