Thursday 17 October 2019

Shane Phelan: 'Compelling case has been made for further change - but don't expect things to move quickly'

Signals: Justice Minister Charlie Flanagan wants to hear from the Law Reform Commission. Photo: PA
Signals: Justice Minister Charlie Flanagan wants to hear from the Law Reform Commission. Photo: PA
Shane Phelan

Shane Phelan

The recent report by family law expert Dr Geoffrey Shannon on divorce in Ireland makes a pretty compelling case for reform - not just of our divorce laws, but also of the courts in which they are applied.

Unfortunately for those who champion his findings, even if the forthcoming divorce referendum is passed, other changes are likely to come slowly no matter how persuasive the evidence.

The signals coming from Justice Minister Charlie Flanagan are that while he welcomed the work done by Dr Shannon, he wants to hear what the Law Reform Commission has to say.

It is due to look at several of the issues examined by Dr Shannon, including pre-nuptial agreements and "clean break" divorces, but is unlikely to report until 2021.

Current Dáil arithmetic also militates against speedy or radical reform.

The politician who laid the groundwork for the referendum, Culture Minister Josepha Madigan, has said some people are suggesting it doesn't go far enough.

But she believes it would not have been possible to get cross-party support to go further at this time and that the Government has to focus on "incremental change".

In the referendum voters are being asked whether they want to ditch or retain the constitutional requirement for ex-couples to live apart for four out of the previous five years before they can divorce.

If passed, the Government plans to legislate for a minimum two-year living apart period. The legislation is also expected to clarify what is exactly meant by living apart.

The main message from Dr Shannon's research, commissioned by the Law Society's child and family law committee, is that the four-year requirement must go.

He made the findings after studying 50 divorce and judicial separation cases and the issues that arose in them.

Dr Shannon concluded there was clear empirical evidence to support the proposition that it was "inhumane" to ask people to put their lives on hold for a lengthy period of time.

The impact on children and the costs associated with waiting at least four years were factors in his thinking. Speaking at the launch of the report, he said the outcomes for children were dependent on the degree of conflict between their parents en-route to the divorce.

"If we are going to maintain a position that we are going to lock citizens into the four out of the previous five years, children will be forced to hold on to that trauma for that period of time," he said.

Anxiety, acting out, and attention problems at school were all issues that had been seen in children caught in the middle of a divorce, he said.

Dr Shannon also found there was a duplication of legal costs in certain cases as some couples had to get judicially separated before they got divorced.

"From the cost perspective they are engaging in two sets of adversarial proceedings in circumstances where they want to move on," he said.

Another key conclusion was that there needs to be more certainty around outcomes.

"What we need is certainty. More definitive guidelines and parameters would help promote mediation and conciliation as a means of agreeing the resolution of issues on the division of assets," he said.

He found there was a considerable range in outcomes depending on the judge hearing the case. He suggested the introduction of a specialised courts structure and judges with specific training.

Excessive case loads, delays and inadequate facilities were all problems associated with the current system, he found.

Dr Shannon said efforts should be made to foster a less adversarial approach to divorce.

He recommended mediation services be located in new family law facilities and that pre-trial conferencing, with the involvement of the judiciary, be used in an effort to resolve family disputes.

Irish Independent

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