Sea-change call on how law deals with divorce
Family law expert tells Ralph Riegel that we need approach to divorce and separation based more on conciliation rather than an adversarial system
Published 10/08/2014 | 02:30
Divorce is like bereavement, only often far more complex and damaging, inflicting terrible trauma on some Irish families because of the adversarial manner in which the legal system primarily operates.
Family law expert Helen Collins has argued that Ireland urgently needs to launch a root-and-branch reform of legislation to ease pressure on courts now creaking under the spiralling family law case load.
With the number of divorced people having increased by 150pc in Ireland in just the past 10 years, Helen argued that we must urgently move to reform a system where already traumatised families are forced to endure further suffering by a restricted, adversarial legal framework.
Helen, a west-Cork-based solicitor who has written a book to illustrate the need for a radical rethink on Ireland's approach to divorce and separation, said the problem is best illustrated by a story involving two sisters.
"One sister said to me: 'I am a widow and people cross the street to commiserate with me.' But the other sister, who was divorced from her husband, told me: 'People cross the street just to avoid me.' I think, in a lot of cases, people just don't know what to say but I think this sums up exactly the manner in which we have traditionally regarded divorce in Ireland."
Helen said it was vital Ireland learns the lessons of European and north American countries which have years ago moved towards a conciliation-led approach to the problem.
"We need a sea-change in terms of separation and divorce. As a society, we need to recognise it as a full-blown bereavement. If we genuinely recognise it as that, it will change our entire attitude towards it.
"We need to move away from the adversarial model and support our families in a different way when they set about separation or divorce."
Helen, a grand-niece of General Michael Collins, is trenchant in her view that Irish solicitors owe their clients not just good legal advice but the psychological and emotional supports they require for their long-term welfare.
Above all, she said, solicitors should embrace a collaborative approach whereby families are guided towards what is in their long-term best interests and those of their children rather than a brutal legal scramble for rights and assets.
"We are the gate-keepers to the entire family law system. There is a responsibility on us to look out for our clients' best interests and that includes their long-term well being.
"There is a growing cohort of solicitors who are training in this collaborative approach. It is where clients are guided and supported towards an agreement option rather than the litigation that some Rottweiler-type solicitors are prepared to engage in because hurt and angry clients are simply out for revenge and want to inflict hurt on the other partner.
"But, with the best intentions of the fine judges in the system who often plead with people to try and reach a settlement themselves, the process can leave people bruised and traumatised to the point of being broken.
"It can be terribly, terribly painful for families."
She admitted that the area of family law in Ireland has come a long way in the past 40 years but now needs to take the next step towards the Australian and Canadian models.
"I have been working in the area of family law for over 38 or 39 years. Up to the point that Alan Shatter wrote his book about family law in the late 1970s, which became 'the bible,' there was nothing. There was effectively no family law in Ireland," she said.
"Then there was a relatively small percentage of family law that was actually law…but there was a huge element of distress, emotional trauma and terrible heartbreak for families."
Helen eventually evolved a system whereby she insists that all her clients receive counselling as part of the separation and divorce process.
It is something she has actively encouraged other solicitors to embrace as critical to supporting their clients.
"Over 15 years ago I worked out that I would have to ask all my clients, men and women, to attend a counsellor while they were going through separation and divorce. The way I would describe it to my clients is that we are very good in Ireland about death. We recognise that when people are bereaved they don't make any big decisions like selling a house or changing a job. Sometimes they need help and counselling.
"I know my clients are in deep bereavement when they are divorcing. Therefore I have a duty of care to them. I believe that every solicitor has the same duty of care to their clients.
"It isn't just about good legal advice…it is about helping provide the psychological and emotional support that they need.
"Above all, it is trying to do what is right for the children involved."
Helen is the grandniece of General Michael Collins - her late father Liam, who was a solicitor based in Clonakilty, was the Big Fella's nephew.
'A Short Guide to Divorce Law in Ireland - A Family Survival Handbook' is written by Helen Collins and published by Atrium Press.
Irish divorce rates are still one of EU's lowest
While domestic divorce rates have soared over the past decade, Ireland still has the second-lowest divorce rate in the EU.
The Central Statistics Office (CSO), in their latest analysis for 2011/2012, found that the divorce rate in Ireland was 0.7 per 1,000 adults, far behind the divorce rates in the UK or Germany.
However, the amount of divorced people has been steadily increasing in Ireland, rising by more than 150pc between 2002 and 2012. In 2002, Ireland had 35,059 divorced people - but that rose to 87,770 by 2011/2012.
The marital break-up rate in Ireland has risen from 8.7pc in 2006 to 9.7pc in 2011/2012.
The Irish Courts Service, in it latest report, revealed that there were 1,380 applications for judicial separation to the Circuit Court.
A total of 3,330 divorce applications were received by the Circuit Court over the 2011/2012 period. The numbers for both are believed to have risen still further in 2012/2013.
Studies have shown that, in the judicial separation applications, women are three times more likely to make such submissions than men.