Wednesday 21 August 2019

Keith Walsh: 'Move to change four-year wait for divorce should be first step of major overhaul'


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Keith Walsh

The Law Society's support for the Government's proposal to reduce the waiting period for divorce is the result of an evidence-based, independent report, 'Divorce in Ireland: The Case for Reform'.

Written by Dr Geoffrey Shannon, it benefits from his renowned expertise and practical experience in child and family law.

This research is important, because we should legislate on the basis of evidence rather than sentiment. It shows while each case of divorce is unique, the waiting period of four years before divorce proceedings can be started is too long. It causes hardship for spouses and children and can result in the duplication of legal costs.

The report does much more than simply support the Government's proposal in the upcoming referendum. It is a detailed examination by Dr Shannon of the current operation of divorce in Ireland.

It identifies a number of key areas where difficulties have occurred in practice and sets out practical recommendations for reform. It is to be hoped the referendum is the first step on the road to a comprehensive reform, which is long overdue.

Within the report, the Law Society welcomes the proposal to replace the outdated constitutional provision in relation to recognition of foreign divorces with a provision allowing the Oireachtas to legislate for this. Greater clarity is long overdue.

Given the increasing use of pre-nuptial agreements, the Law Society is calling for their recognition, subject to the general rules and regulations governing contract and existing family law principles.

The current position where pre-nuptial agreements are, on the face of it, not enforceable by the courts does nothing to provide clarity and certainty in financial matters for couples entering into marriage.

Judges should still retain a wide discretion to amend the terms of any pre-nuptial agreement in the event of marriage breakdown, in the best interests of everyone involved.

The report is also calling for a review of the law in relation to "clean break" divorces, which involve, in appropriate cases, limiting the opportunity of a spouse who has been awarded maintenance orders to go back to court for amendments to those orders.

A dedicated family law court with specialised judges should be developed. This would give greater consistency of approach and outcome, making it easier to resolve cases and reducing the stress of attending family law courts.

It also says a properly resourced and interdisciplinary system of resolution of family disputes should also be introduced, with facilities on-site for mediation services.

Keith Walsh is a family law solicitor and chair of the Child and Family Law Committee of the Law Society

Irish Independent

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