I am very pleased to have been asked by Helen Collins to launch The Short Guide to Divorce Law in Ireland. Helen has pulled off the impressive feat of producing an easy-to-read guide that is chock-full of useful information. This guide will be of great use to people going through marital breakdown and divorce in Ireland. I imagine that Citizens Information Services and NGOs will be able to draw on the guide to offer accessible information to members of the public on legal options and to refer individuals to relevant services.
As many of you here this evening will know, Helen has extensive experience in the field of family law, having worked as a solicitor, mediator and collaborative practitioner at Wolfe and Co in Skibbereen. Moreover, Helen is a pioneer in the field of collaborative practice and is a founding member of Association of Collaborative Practitioners.
It is her two-fold experience as a lawyer and as a champion of alternative dispute resolution methods that enables Helen to produce a guide that recognises the impact of emotion on couples’ responses to the legal aspects of the divorce process. We all know that separation and divorce can be truly traumatic for the couples concerned and for their families. What is uniquely challenging about the divorce process is that it requires individuals to take legal decisions with profound implications for their lives precisely at a time when they may be psychologically ill-equipped to do so. This guide usefully recognises that emotion will influence how the person reacts at each stage of the process.
Helen gives very sensible advice to parents going through a divorce. She addresses issues such as access and custody, the impact on children of a new partner and strategies for supporting a child displaying troubled behaviour as a result of the relationship breakup. Her key message is that the negative impact on children can be minimised if parents handle the divorce process well. She shows the damage that can be wrought on children when parents try to enlist them into the battle with the ex-spouse.
Helen guides her readers through the processes of collaborative practice, of mediation and of adversarial court proceedings, showing what will be expected of people in each of these processes. She makes clear the advantages of using alternative resolution methods such as collaborative practice and mediation. As she says, these methods enable the couple to control the outcome rather than leaving it to a judge, who does not know the family, to determine what is in their best interests. Helen gives very accessible advice on dealing with urgent court applications, with court applications in situations where agreement cannot be reached and with the process of formalising the divorce or separation settlements.
The guide provides a directory of support organisations for counselling and therapy as well as of parenting resources nationwide. It also provides a directory of lawyers across the country qualified to act as collaborative practitioners.
Helen’s guide recognises the reality that many people across the country go through separations and divorce each year. According to the Central Statistics Office, 2,892 divorces were granted and 3,482 applications for divorce were made in 2012. Census 2011 indicated that the marital breakdown rate had risen to 9.7% by 2011. Inevitably, this trend is on the increase.
The Government is conscious that our current laws do not cater adequately for the changed circumstances of our society, for a society in which many families are non-marital or blended families. We urgently need to reform and modernise our family and children law in Ireland to cater for the growing number of families whose needs are not adequately addressed in current law.
That is why the Government made a commitment in the Programme for Government that we would address the issue. As you are aware, I published the General Scheme of a Children and Family Relationships Bill on 30 January which seeks to put in place a legal architecture to address the needs of diverse families. It aims to provide legal clarity in terms of parentage, guardianship, custody and access for the new family forms within which children are being reared. It addresses the parentage issues that arises when children are born through surrogacy and assisted human reproduction and proposes to remove the current anomaly preventing same-sex couples from being assessed jointly as adopters.
I share Helen’s view that adversarial approaches are not always the best solution to relationship breakdown. Many of you will know of my commitment to, and interest in, mediation and alternative dispute resolution mechanisms as a means of solving relationship disputes. I see mediation as particularly fruitful in cases involving children as an agreed solution on custody and access is in the children’s best interests. The draft Bill accordingly reiterates the duty on solicitors to inform their clients of alternatives to court proceedings and to encourage them to engage in counselling and mediation aimed at finding non-adversarial solutions to family disputes.
We need to make parenting work for children even when the relationship between the children’s parents has broken down. I believe strongly that it is in the interests of a child to have a meaningful relationship with both parents, where possible. A parent should not be allowed to prevent the other parent from maintaining contact with the child. As a consequence, I have proposed a graduated menu of options that can be ordered by the courts when an access or custody order has been breached. I am also proposing that the court would have discretion to order the parties to engage, together or separately, in a parenting programme, counselling or in mediation focused on parenting.
The other side of the equation is, of course, maintenance. Children living in blended families or with cohabiting parents need the same protections in terms of maintenance as those living in marital families. The draft Bill proposes to establish the principle that a step-parent, civil partner or cohabitant partner of a child’s parent would, in certain circumstances, have a maintenance obligation to the child. I also propose to address the needs of children living in blended families by broadening the categories of person who can apply to become a guardian of a child. A step-parent or the parent’s civil partner or a person who has cohabited with the parent for over three years and who has shared a parenting role for a child for more than two years will be able to apply to become a child’s guardian under these provisions.
I have provided for a comprehensive definition of the best interests of the child to be applied in proceedings on guardianship, custody, access or in the administration of property on behalf of a child. This definition is broader than the current focus on a child’s welfare and reflects the purpose of the Children Amendment which seeks to place the interests of the child at the heart of decisions affecting a child’s life.
As families become more diverse, the legal issues that arise become ever more complex. Family breakdown and parenting disputes are particularly sensitive and painful areas and their determination requires specialist skills.
The Government has committed to the establishment of a distinct, separate and integrated system of family courts aimed at streamlining family law court processes, making them more efficient and less costly and encouraging the use of alternative dispute resolution, where possible, to resolve issues of family conflict.
Work is currently being undertaken to develop a concept for the Family Court which utilises our existing court structure whilst ending the current jurisdictional fragmentation and providing for a unified and comprehensive approach. It envisages the exercise of an ex parte and / or emergency jurisdiction at the District Court level to ensure ready accessibility. Most substantive family law cases, including those relating to divorce and separation, would be at the Circuit Court level, with more complex cases being dealt with at the Family High Court level. I envisage a single point of entry to the Family Court at all levels, with use of standard documentation and electronic filing mechanisms, where possible, and overall substantial reduction in legal costs incurred across a broad range of contested family disputes that require court resolution. It is intended that there will be a cohort of family law judges who will have substantial expertise in this area of law and access to ongoing professional development in the area. I also envisage integrated family court offices at regional level which will have ancillary facilities for the assistance of litigants including ready access to alternative dispute resolution.
It was originally anticipated that a referendum would be required to establish the new Family Court structure. From the work that we have undertaken, it appears this may not now be necessary and that we may be able to establish the new court as a separate and independent court structure within the parameters of the existing Article 34 of the Constitution. My aim is to publish a general scheme for the Family Law Courts Bill in the autumn with a view to enactment of the Bill in the first half of 2015.
While it is never easy to go through a divorce, those who are properly advised are best equipped to make the right decisions. Helen’s Short Guide to Divorce Law in Ireland provides sage advice that will guide an individual through
the whole process. I strongly recommend the guide to you and to the general public. I congratulate Helen on her book and am sure that it will be a great success.
Thank you very much.