Outline of presentation on Divorce by Eugene Davy At Family Lawyers Association meeting on 28th February 2012
As we all know our two step Separation and Divorce Law can lead to (and indeed encourage) very contentious and protracted litigation. Such litigation does have a very damaging effect on the health and wellbeing of the parties involved and on their children. Pre-existing problems are exacerbated. Individuals cannot get on with their own personal lives. In addition to the very emotional and personal consequences of such litigation, the financial resources of individuals and their families can be substantially depleted by costly litigation.
While many Divorce cases do proceed with cooperation and agreement from both parties there are too many Divorce cases which become very contentious and protracted. Quite often such Divorce cases are preceded by a contentious and protracted Judicial Separation case. In some of such cases there is an Appeal of the Judicial Separation case before the Divorce case is heard.
Consideration should be given to introducing a Divorce Law which would allow couples apply for a Divorce simply on grounds identical to Section 2(1)(f) of the 1989 Act i.e. no normal marital relationship for in excess of one year. Alternatively a system could be introduced whereby a Decree of Judicial Separation could transcend to a Divorce after a certain period of time following a legal Separation – if one or both parties so wish.
There are various ways in which our present Separation and Divorce law could be reformed to ensure that if matters are going to be contested there would be one contested case rather than two contested cases. One way or another an amendment to the Constitution is essential to facilitate any substantive legislative change to the present Act of 1996.
My own suggestion is that the provisions of the Constitution relating to Divorce should simply be deleted altogether. This would enable our legislators to introduce, debate and enact Divorce legislation without Constitutional restraint and it would enable the legislature to enact reforming Divorce legislation which hopefully would be conducive to bringing about a greater degree of finality for couples in a far more dignified manner than at present.
Pursuant to the Civil Partnership and Certain Rights and Obligations of Co-habitants Act 2010 civil partners can obtain a Decree of Dissolution in respect of their civil partnership if they have been living apart from each other for a period of, or periods amounting to, two years during the previous three years. It is ironic that the required period for spouses to be living apart from one another for a Divorce is four years.
In addition to the problems caused by our two-step Separation and Divorce law and procedures problems and injustices can arise as a result of the requirement that the spouses must satisfy the Court that they have been “living apart” from one another for the requisite period of time prior to the commencement of the proceedings.
What constitutes “living apart”? There is no definition in the Family Law (Divorce) Act 1996 or elsewhere. There are occasions when the Courts have accepted that the parties have been living apart for the requisite period of time notwithstanding that they have continued to reside together in the same home. However, generally speaking, in such cases there is evidence that the parties have been sleeping in separate bedrooms and living very separate lives from one another.
The 1996 Act and its application discriminates against people of modest means. Most people of modest means do not have facilities within their home to establish their own living quarters and to live apart from one another. Invariably they must continue to share the same bedroom.
If “living apart” is to be given its true and literal meaning then it would be necessary for one party to leave the family home and take up residence elsewhere in order to start the process of constituting “living apart”. Taking such a big step – which is very much like putting the cart before the horse – is rarely possible or practical particularly in these recessionary times. I would respectfully suggest that the ground of “no normal marital relationship” for in excess of a year would be a more practical and fairer ground and basis for a new Divorce Law.
If you require any further information on topics Eugene discussed at the Family Lawyers Association meeting please email Eugene at edavy@hayes-solicitors.ie