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Law Society joins in call for a ‘yes’ vote on divorce referendum

In late April, the Law Society's non-standing Family and Child Law Committee released a report entitled Divorce in Ireland: The Case for Reform. This landmark piece of research takes stock of socio-legal developments and research in the area of divorce law in Ireland over the past 20 years, and makes 11 key recommendations for reform.

Split into three parts, Divorce in Ireland charts the development of the Family Law (Divorce) Act 1996 over its two-decade history, presenting unique and insightful empirical research on both this storied – and at times, controversial – history of divorce in Ireland, while also looking to contemporary sources of thought on the subject.

Written by subject expert, Dr Geoffrey Shannon, the report is thorough in its approach, and indeed lays out over two pages its precise approach in terms of methodology used and data analysis processes – something that it must be acknowledged is often lacking from legal research papers. The following section details how first-hand evidence of how the Irish family law system operates was obtained:

‘The researcher attended six courts: Dublin, Cork, two other provincial cities and two county towns, selected on the basis of the volumes of family law cases they dealt with. Attendance was constrained by whether they were hearing family cases at times the researcher was available, and the fact that different Circuit Courts have family law sittings on the same week of the Court term.’

It should be noted that while family law cases are predominantly held in camera, the Civil Liability and Courts Act 2004 does permit researchers to attend and report on family law proceedings – subject to the caveat that they maintain the anonymity of the parties involved.

The report supports the government’s proposal to amend Article 41.3.2 of Bunreacht na hÉireann, which provides that courts may only grant a dissolution of marriage where it is satisfied that the spouses have lived apart for four of the past five years prior to the commencement of proceedings, there is no reasonable prospect of reconciliation between them and proper provision has been made for children.

The Law Society supports reducing the living apart requirement from four in the past five years, to two in the past three years. Further recommendations were also made by the report, most notably:

  • A specialised family court structure should be established;
  • A definition of ‘living apart’ should be developed;
  • Provision for ‘clean break’ divorces should be made;
  • A set of principles for determining relief should be created;
  • The Succession Act 1965 should be reviewed;
  • Alternative means of dispute resolution should be promoted;
  • Court reporting rules should be amended to allow access for research purposes.

In an op-ed which appeared on Independent.ie, family law solicitor and Bloomsbury Professional author, Keith Walsh contends that reducing the four-year living apart requirement should be the primary goal of any intervention in this area.

He identifies the recognition of pre-nuptial agreements as an area where modernisation is needed, but cautions that ‘judges should still retain a wide discretion to amend the terms of any pre-nuptial agreement in the event of a marriage breakdown, in the best interests of everyone involved’.

On the issue of a specialised family court system, Mr Walsh welcomes this recommendation, noting that it would ‘give greater consistency of approach and outcome, making it easier to resolve cases, and reducing the stress of attending family law courts’.

 

 

Bloomsbury Professional Ireland's first-ever Family Law Conference is on Friday, 17 May at the Chartered Accountant’s House on Pearse Street, Dublin 2. This half-day conference will see expert speakers from a range of backgrounds come together, covering key developments in legislation and case law - including an in-depth look at The Domestic Violence Act 2018. The financial aspects of family law cases will also be examined, including spousal support, valuing assets and pensions. Book your place here, or give us a call on 016373920.

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