WHY IS IN IRELAND STILL SO DIFFICULT?
Lengthy legal processes, long delays and high charges mean splitting up is off limits for many. Author Michelle Browne asks...
It has become clear that the traditional route to divorce in Ireland is long due a major overhaul. Ireland has legislation in place allowing for divorce since 1996. This legislation should allow for parties who wish to legally separate or divorce – after two years being separated – to do so. But the reality is that achieving divorce in Ireland has simply been torture for so many couples for way too long.
Why, almost 25 years on, is it so difficult to achieve divorce in Ireland? Who benefits from this damaging, outdated system? How can we as a society help achieve a less costly, less stressful divorce in Ireland? What can the Government do to help?
Current legislation
Currently, legislation states that ‘correct provision’ should be made for parties to divorce. This might sound vague – it is! This only serves to allow each side in a divorce to build a case. Who benefits from these cases? As someone who has been divorced twice, I would argue that it is certainly not the parties who are divorcing and most certainly not our children.
What happens in building these cases is that employment is achieved for solicitors and barristers on either side. The need for gathering information and building ammunition is a lengthy, costly and a highly stressful procedure for the parties involved. The casualties to the battle are most certainly the children and undoubtedly the parties themselves.
What must change
As a family mediator, it is very clear to me that this practice of building cases against each other in divorce is what must change. We live in what is referred to as a ‘no-fault state’ – in other words, the bad behaviour of one or other of the parties does not matter.
Should either party have had numerous affairs throughout the marriage, it doesn’t affect the outcome of what is referred to in law as ‘correct provision’. These bad behaviours are regularly discussed by parties with their solicitors. These conversations do not serve to help achieve amicable agreements.
It is my experience that these conversations regarding bad behaviours serve to accelerate the use of solicitors, often giving clients the misguided understanding that some restitution for hurt will be achieved. Justice for heartache is not served in family law courts.
Whether or not separating couples have two homes, six homes or no property whatsoever, there is definitely an easier way to divide and deal with marital property, assets or liabilities as the case may be. So what should we do, and what is here already that will serve to reduce further conflict and help our children through this difficult time?
What the Government can do
Firstly, the Government must acknowledge that change is needed. It is entirely possible to drastically improve how we have been dealing with separation and divorce in Ireland.
The Government can provide guidelines as to what correct provision actually means for separating couples. Obviously this is not straightforward and is different for each situation. However, there are a number of ways in which this can be addressed. Let’s consider the possibility of examining statistics on all decisions made by judges in the family courts for the past two years. If we looked at what decisions judges made around maintenance payments, division of property, assets, pensions etc, these could simply be used as guidelines for separating couples.
Secondly, pre-nuptial and post-nuptial agreements are not currently legally recognised in Ireland. How difficult could the process of drawing up a contract between two parties be? HR professionals draw up contracts of employment every day. When we purchase an item in a shop, we have a unwritten contract with the shopkeeper. A contract between two people entering into a marriage needs to be legislated for.
This will allow couples to determine what they believe to be fair, should they split up.
Allowing for these important agreements will naturally allow us to deal with divorce in a much more amicable fashion.
Thirdly, offer greater supports to the practice of private professionals in mediation, which is an extremely important and necessary profession in any progressive society.
What we can do to help ourselves
The mediation act of 2017 allows for legally binding separation agreements to be drawn up by your mediator outside of the courtroom. This allows for parties of a separation to attend a suitablyqualified family mediator who will work with both parties to agree terms in which to separate and divorce.
Although there is clearly more needed to improve how we deal with divorce in Ireland, it truly doesn’t need to be such a difficult process. Mediation is the best available route to achieve divorce in Ireland today.
I would advise all couples who are faced with the difficult decision to separate to seek out a suitably qualified professional family mediator. Your mediator will assist you with your different options and endeavour to create an amicable and fair agreement.
Talking to a mediator can help you to avoid causing yourself and your family additional stresses, financially or otherwise.