Tuesday 25 October 2016

Time to make divorce law more humane

Matrimonial litigation is not for the faint-hearted. But marriages do fail and the four-year limbo needs to be reduced

Josepha Madigan

Published 16/10/2016 | 02:30

Former Fine Gael Taoiseach Garret FitzGerald's Photo: Chris Doyle
Former Fine Gael Taoiseach Garret FitzGerald's Photo: Chris Doyle

After Sir Paul McCartney's divorce, his lawyer, Fiona Shackleton, remarked that a courtroom is a barbaric venue in which to pick over the carcass of a failed marriage. Within the context of an Irish family law justice system that can often be very adversarial, that is an irrefutable fact. It is also an irrefutable fact, however, that marriages break down. Matrimonial litigation is not for the faint-hearted. If a spouse wishes to get divorced and fulfils the provisions as set down in both the Constitution and Section 5(1) of the Family Law (Divorce) act 1996, then a divorce decree can be granted. Even the terms of uncontested divorces need to be ruled by a Judge of the circuit or High Court.

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It is almost 20 years since the people of Ireland voted, by a majority of 51 per cent to 49, to remove the constitutional prohibition to divorce. This Wednesday, along with my panel of guest speakers, I will brief all TDs and Senators on my reasons for bringing my private member's bill, the proposed 35th amendment to the Constitution, to reduce the period of time required for separated couples to initiate divorce proceedings by half, from four years to two. This is a much-needed reform which will allow separating couples to embark on the next chapter in their lives without the unneeded stress and financial burden imposed by a four-year waiting period. If my bill passes in the houses of the Oireachtas it will still require approval by referendum.

For too long, Irish legislators were unwilling to directly confront the sad reality of marital breakdown in this country. Marital breakdown was often judged harshly. The sad reality that not all marriages last was too often ignored and neglected while divorce was explicitly banned by the 1937 Constitution.

Fine Gael Taoiseach Dr Garret FitzGerald backed a referendum to remove the constitutional ban on divorce in 1986. Unfortunately, the 10th Amendment of the Constitution Bill was defeated comprehensively at the ballot box with over 63pc of voters choosing to retain the constitutional ban.

With no possibility of legislating for divorce, marital breakdown was dealt with by piecemeal legislation over the years. From the Guardianship of Infants Act, 1964, to the Family Law Act, 1995, the Irish state enacted various measures to deal with the breakdown of marriage while precluding the possibility of divorce.

It was in this context that the 1995 referendum was put before the Irish people. Finally, the Irish state would legislate for divorce, offering separating couples legislative certainty. It was a recognition by the Irish people that not all marriages succeed, and that those whose marriages did not succeed should have finality and the right to remarry.

This referendum, conducted over 20 years ago, provided for a system of no-fault divorce and provided the court with the responsibility to ensure proper provision for both spouses and any dependent children. It also imposed a four-year waiting period on separating couples before they could initiate divorce proceedings. This divorce regime, restrictive as it was, was only passed by the slimmest of majorities.

Marital breakdown happens for various reasons whether we like it or not. We need to treat those who separate with more compassion.

The 2011 census clearly shows us the statistics. Over 246,000 Irish people have experienced marital breakdown while a substantial 42,000 people have been able to remarry. Some 87,000 people are divorced. In addition 116,000 people are separated or judicially separated.

I believe in marriage. We do not undermine it when we treat separating couples in a fair manner. What I want is for separated couples to be treated fairly and humanely.

Our current divorce law is too harsh and restrictive, placing severe financial and emotional strain on separating couples. The four-year rule locks people in a limbo, forcing many thousands of couples into two separate sets of proceedings. Halving this time is fair and achievable.

As a family lawyer and mediator, I have seen, first hand, the damage of protracted matrimonial litigation that only serves to increase hostilities. The four-year waiting period for a divorce is far too high and in nobody's best interests, least of all the children.

Josepha Madigan is a Fine Gael TD for Dublin Rathdown and a family law partner at Madigans Solicitors.

Sunday Independent

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