Tuesday 21 May 2019

Law Society supports new divorce proposals in upcoming referendum

Maria Herlihy

Over 100,000 couples divorced by 2016 according to CSO figures as there is now "an increasing acceptance of divorce within Irish society as a remedy to an irretrievably broken down marriage." 

That is according to Dr Geoffrey Shannon, a member of the Law society's Family and Child Law Committee. 

He was speaking at a report launched at the Law Society of Ireland, which supports the Government's proposal to reduce the minimum living apart period for spouses seeking a divorce to two years, in the upcoming referendum. 

The Law Society also made 11 recommendations for reform which also includes that a specialised family court structure should be established and the definition or definitions of "living apart" should be developed.

It also recommended a set of principles for the determination of ancillary relief that should be put in place, and which should include all maintenance orders, lump sum payments, settlements, property adjustment orders and pension adjustment orders.

 It also recommends the provision for a "clean break" that could be put in place in appropriate cases. Another recommendation made was that  the law should be reviewed to allow for the development of pre-nuptial agreements  that are valid and enforceable. 

Dr Shannon said that divorce has been in operation in the country for over two decades.

"During that time Ireland has witnessed radical change that has resulted in a more secular, more modern and less traditional society," he said. 

"The Council of the Law Society, having considered the report, decided to call for a Yes vote in the referendum due to take place later this month. 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 ," he said. 

Referring to the Central Statistics Office (CSO), he outlined that the number of divorced people in the State has increased from 35,100 in 2002 to 103,895 in 2016. Dr Shannon said, "Undoubtedly, the rise in the number of divorced persons also reflects an increasing acceptance of divorce within Irish society as a remedy to an irretrievably broken-down marriage." 

As well as supporting the proposal to amend Article 41.3.2 of the Constitution, noting that such a change would require a constitutional referendum. 

In their report Divorce in Ireland: The Case for Reform, the Law Society, also recommends that a review  of the issue of maintenance should be prioritised and The Succession Act of 1965 should be reviewed, with particular regard to the introduction of divorce and the consideration of "clean break" scenarios.

Another recommendation was that ,alternative means of dispute resolution should be actively promoted and facilitated, wherever possible, and court reporting and research rules should be amended so that any bona fide researcher with a connection to the legal profession can carry out research on family law cases.