Tuesday 21 May 2019

'It's been more than five years since we split' - author Kate Gunn on the expense of divorce in Ireland

The big read: When it comes to easing the pain of divorce, a reduction in the four-year waiting period is only the beginning. John Meagher reports on the high costs involved in making a clean break

Sitting tight: Kate Gunn says there can be a fear factor when it comes to DIY divorces. Picture by Kyran O’Brien
Sitting tight: Kate Gunn says there can be a fear factor when it comes to DIY divorces. Picture by Kyran O’Brien
High stakes: lawyer Roddy Tyrrell says it's not unusal for divorcing couples to pay €15,000 each in legal fees. Picture by Owen Breslin

Kate Gunn was sure she would be divorced by now. It has been more than five years since she and her husband split amicably. But there is one thing stopping them: money.

"It's so expensive to get divorced in this country," she says, "even when both parties are in agreement. By the time you've used solicitors and tied up all the loose ends, you can be talking thousands. And when you split, you've far less money to spend than before so the last thing you want it to be going on are legal fees.

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"We looked into the DIY divorce options but there's a real fear factor there because we have three kids and a property. For now, we're just sitting tight - we have an arrangement that works for us, but it will be a while before we can get around to the divorce."

It is a sentiment that will likely be echoed by many of those who have sought divorce since it was legalised a year after the bitterly fought 1995 referendum. Divorce was permitted thanks to the slimmest of margins - there were 9,114 more 'yes' votes. Most constituencies voted against. Nine years earlier, the 1986 divorce referendum resulted in a resounding 'no'.

Just 93 divorces were granted in the first year, but the number increased dramatically afterwards. It soon became apparent that there was an appetite for divorce - albeit far less than the 'no' side had suggested with their 'Hello Divorce, Bye Bye Daddy' billboards - and that getting divorced was a costly business.

And the cost of getting divorced in this country is part of a national conversation again in these final weeks before a new referendum on May 24 which could result in the wait-time for divorce here being reduced from four years to two. Opinion polls suggest the referendum will be comfortably passed, with the Government strongly advocating for a 'yes' vote.

Dublin-based family law solicitor Roddy Tyrrell of lawyer.ie says costs don't have to be prohibitive, but says it is not unusual for divorcing couples to end up paying €15,000 in legal fees each.

"So much of it depends on how amicable they are and if they can come to an agreement quickly," he says. "If not, and especially if there is quite a bit at stake such as valuable property, that's when the costs mount.

"And it's the squeezed middle class that really feel the brunt. Rich people can just pay the fees and be done with it, but it can be very tough on those who are in normal employment and have seen a significant drop in disposable income since the split."

Planning a fight

Tyrrell says it is possible for divorce to be done practically for nothing - "just €20 to get solicitors signatures in the most basic of cases where there's no property or children" - but he says a best-case scenario for many is €2,000 per party, plus VAT.

"When they're not in agreement, that's when it gets messy and, unfortunately, it happens a lot. What I would say is if you are planning to fight, you'd want to fight over something that is economically worthwhile, such as a house that's not in negative equity. It's crazy if people end up spending a lot in legal fees when they don't have much, financially, to fight over."

Personal finance commentator Sinead Ryan says divorce doesn't always have to be expensive. "I have known people to get divorced for very little but in reality, it doesn't happen as much as we'd like," she says.

"While it is technically possible to get divorced for about €1,000, it is a very rare occurrence because it requires both parties to the application to be completely of one mind, have completely agreed the divvying up of assets, of custody, of maintenance - and then to have a lawyer who is able to sign off on that.

"All divorce cases must go to court," she adds. "There's no mechanism to divorce outside of a court room. There is legal aid available but it's means-tested and there is a waiting list."

Ryan, who writes a personal finance column for the Irish Independent, says the legal fees have often stacked up before either party has set foot in court. "It is a naturally adversarial system so if you've got one party flinging legal letters at another party, they have to be answered. You have to defend your position and state your case and you know once lawyers are involved that could rack up costs before you ever get to court."

Dr Louise Crowley, law lecturer at University College Cork, hopes that if the wait time for divorce is halved following the referendum later this month, costs will come down.

"The upcoming referendum will change very little in terms of the regularity framework other than make it more accessible," she says, "and, in making it more accessible, it will reduce costs. It should allow people to resolve matters more efficiently and more quickly, therefore reducing the need for what we term 'interim' or 'transitional' orders and allow people to get their house in order much more quickly."

She says litigation costs can be high, especially in adversarial cases. "The framework we have means there's an infinite capacity for costs to be incurred," she says.

"The number of lay litigants before the courts in family law cases has never been higher. That points to the hugely burdensome costs that is associated with litigation in family law." And, Crowley adds, it can be an arduous process for those not used to the cut and thrust of law to undertake.

She says those separating couples who want to keep costs down should look to Family Mediation Services (FMS), the government-funded initiative that is free of charge and open to all, irrespective of income and whether they have children or not.

"A divorce," she says, "can be incredibly efficient where parties negotiate, go to mediation and fulfil the criteria of proper provision to the parties that can be presented to the court as a notice of motion by consent and there is time set aside whereby anybody can agree. The court will have a look at it, make sure it's a proper provision and then make the order."

Free mediation

Fiona McAuslan is the director of FMS and a practising mediator. "For free, and for as many sessions as they need, a couple will come and complete a negotiation for their separation," she explains. "Money, the family home, the debts, the assets are all looked at. And there's very strong focus on the children, about how to be parents after the divorce and how the family stays functioning as a separated family.

"The process tends to take five to seven sessions and at the end they have what we call a 'full mediation agreement' and that is a mediated agreement that covers every part of what they have agreed in the process - it will be very detailed. That can be taken to a solicitor to be made legal, to use the vernacular.

"In terms of costs, the mediation service is completely free. We would advise people to go to solicitors to have legal advice to make sure they're making the best types of agreements they can get. And they'll have to pay a solicitor for that kind of advice."

McAuslan says some people choose to live by it - and its detail about maintenance, custody and so on - without making it officially legal, but many others will seek to put a legal stamp on it. "Fundamentally, there are three ways to come to agreement: You can sit at a table and you work it out; or you sit in a room and have somebody like a mediator help you work it out; or you ask someone else to make the decision for you. If it is not possible to do the first or the second, you are immediately paying for a legal team to advocate your view so that a third party - in this case a family court judge - will make that decision.

"So, the moment you're asking someone else to make a decision about the family home or a decision about access or custody, you're paying for somebody to advocate your view in order for the judge to be able to make a valid decision. But in mediation, in essence, you are making the agreement together rather than deferring that to a third party.

Laura Erskine, the 'Mum in Residence' of the parenting site, MummyPages, says the potentially exorbitant costs of divorce are of huge concern to their readers. "And it's not just divorce," she says. "It's getting a separation order, too. Once barristers are involved, the figure goes up very quickly and it can be very intimidating for them to feel that there's no end figure. The costs can mount and mount.

"One thing that is of great concern are those women who are financially constrained but end up accepting a separation or divorce settlement that's inferior to what they should have had, simply because they don't have the money to keep going with the legal fees."

Erskine is herself going through the process of divorce. She has had to pay €9,000 in legal fees to date, comprising €5,000 for a separation agreement and a further €4,000 for a Section 47 report - in which a court appoints someone to determine what the best interest of the child or children are in family law proceedings.

"I found the process to be very stressful and drawn-out" she says, "especially when you don't know what you might end up paying. Sometimes, at the divorce stage, there can be huge battles over what will happen to the pensions and that can take time and, of course, money."

Keep it cordial

Meanwhile, Kate Gunn believes separating couples desperate to keep legal costs down have to try to be amicable. She has written a book on her own experience about the tricky business of separating without rancour, Untying the Knot. Its subtitle - How to Consciously Uncouple in the Real World - is a reference to the famously cordial divorce Coldplay's Chris Martin and Oscar-winner Gwyneth Paltrow apparently enjoy.

"It's not easy but it's by far the best way to avoid courts and big costs, and also to give you the headspace just to go about the day-to-day."

She says she and her husband will divorce one day. "It will happen when money is a bit freer," she says. "For now, we'll just get on with our lives and the business of bringing up our children as well as we can.

"My ex used to say, 'You can simply go into a registry office to get married - wouldn't it be great if you could do the same at the end?'"

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