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Sunday 25 August 2019

It's time for major reforms of rules on divorce, says family law expert

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Stock photo
Shane Phelan

Shane Phelan

Major reforms of Ireland's divorce regime, including provision for "clean break" divorces and prenuptial agreements, have been recommended in a major report by family law expert Dr Geoffrey Shannon.

The report, written for the Law Society's child and family law committee, also makes the case for shortening the period former couples must wait before they can divorce.

It examined 50 divorce and judicial separation cases in the courts and found the largest group of people were parties seeking a divorce as soon as they legally could.

Under the law as it currently stands, divorcing ex-couples must have lived apart for four of the previous five years.

A referendum later this month will see voters asked to remove the waiting period from the Constitution so the Oireachtas can legislate for a shorter minimum waiting period of two years.

Dr Shannon said that having considered the report, the council of the Law Society had decided to call for a yes vote.

"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," he said.

However, it is clear from the report the waiting period is not the only area of divorce law where reform may be needed.

The report calls for a definition to be introduced for "living apart", saying the absence of such a definition has caused difficulties. In a minority of cases a spouse has argued he or she has lived apart from the other spouse while they were sharing the same house or dwelling.

In such cases the spouse has had to satisfy the court through the provision of specific evidence that he or she has lived a separate life. This can include eating separate meals, limited interaction while in the house, and not holidaying together.

Another area where reform was recommended was in relation to "clean break" divorces.

These are divorces where the parties will no longer have financial ties once the order is given by the court, but the Divorce Act has been interpreted as prohibiting them.

The report calls for the Succession Act to be reviewed, with particular regard to the consideration of "clean break" divorce scenarios.

Dr Shannon's report said historically there was a genuine fear wives who worked in the home would be discriminated against, as they would have sacrificed their earning capacity to benefit the family, and then upon a "clean break" divorce would be left financially desolate. However, Dr Shannon said that in practice this fear had not materialised.

The report also calls for a review of the law to allow for the development of pre-nuptial agreements that are valid and enforceable.

Such agreements are effectively precluded under Irish law, but Dr Shannon's report recommended they should be valid and enforceable to the extent they support and foster the best interests of children and spouses. It said judges should also retain a wide discretion to vary the terms.

The report, being published today, will be examined by Justice Minister Charlie Flanagan. A spokeswoman said the minister's immediate priority was to ensure the passage of the referendum.

"Should it pass, the minister hopes this will create more momentum in the family law space and create opportunities for the Oireachtas to engage on all of these issues," the spokeswoman said.

Irish Independent

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