Sarah Harte: We need a more affordable, more compassionate divorce system
Rates European Picture: Of People Has Average Divorce Ireland Lowest Pared 1 In Europe At Of Divorces Per Per 1,000 6 6 Istock One To 1,000 The The
What would you say the chances are of a divorcing Irish person burbling, as a radiant Sophie Gregoire Trudeau, ex-wife of the Canadian prime minister recently did, about divorce not being a defeat but rather “l’évolution amoureuse” — the evolution of love?
Cultural differences aside, the answer is nil thanks to the deeply attritional, adversarial, intimidating, and costly nature of Irish divorce proceedings.
The Irish family courts are broken and the divorce laws are deficient.
Justice Minister Helen McEntee has articulated her vision for a modernised family justice system that is “efficient and user-friendly and puts family and children at its centre”. At the moment, this laudable vision remains a pipedream.
A new bill proposing to move some divorces to the district court to provide swifter access to divorce proceedings and make it cheaper has not been welcomed by the legal profession. No surprise there because when proceedings occur in higher courts, higher fees are charged.
The Bar of Ireland, the Family Lawyers Association, and the Law Society are asking the Government to drop this provision, saying that the district courts are overburdened and that divorce is too complicated for the district court. The self-serving objections are the usual smoke and mirrors dressed up in flowery words. As several NGOs have pointed out, the bill needs amendments but there’s no reason why a properly resourced district family court can’t deal with uncontested divorce cases.
A fortnight ago, at lunch, three out of four people chowing down were currently attempting to get a divorce in Ireland and not lose their marbles.
The stories were not pretty.
Before instituting proceedings, you have to be living apart for two out of the previous three years. This is far too long. We don’t want to introduce McDonald's-type divorces but, when a marriage is over, it is over. We do not divorce too hastily. The family is still central to Irish life and that is a good thing.
Back in 1995 when divorce barely squeaked through a referendum, some claimed divorce would skyrocket, but a culture of quickie divorces did not emerge. Although the rate is slowly on the rise, according to CSO figures this year we have one of the lowest divorce rates in Europe at 0.6 divorces per 1,000 people compared to the European average of 1.6 per 1,000 people.
So why do we continue to punish Irish couples who wish to divorce?
Partially, it’s a cultural hangover from our theocratic past with a lingering taboo around divorce.
It’s also down to the court system, because the duration of divorces is highly dependent on the court schedule, which is far too slow. The backlog in the court calendar influences the speed at which cases progress, making it infinitely more psychologically tortuous and financially crippling.
The average divorce typically takes from its inception anything from a year to two years, even up to three years. The longer time spent in court, the more costly the process will be. When you do make it in front of a judge (big congratulations to you), if any part of an agreement is contested then it’s back to the back of the queue for up to a year. So now you’ve been locked inside this process for years since you first took the painful but brave step to pull the ripcord. And at what personal cost?
One intriguing statistic is that women in Ireland, the UK, and internationally are likelier to initiate divorce and separations, although we were also told by the Irish anti-divorce faction that it would be men who would exit the stage. But it is women who go for divorce more often, usually in middle age, even though statistics show, post-divorce, women end off financially worse with inadequate pension contributions and sometimes no home.
There is no monolithic reason why couples divorce but increased economic independence is one obvious reason why women are likelier to initiate divorce than previously. This alone doesn’t explain why women have become so much more likely to initiate divorce than their husbands. Sociology and gender studies experts link unpaid emotional labour, lack of emotional support, and shared responsibility within marriages to divorce initiation disparities.
While marriage may fail for multiple complex reasons, from what I can see, many women break for the border not because they have some new romantic prospect waiting in the wings (that ‘comfort blanket’ relationship post-marriage seems to be more of a male thing), but because, at a certain point, the penny drops that the Cinderella fantasy they were sold as small girls was a pup.
There’s a happier, healthier way to lead a life than functioning as a supporting actress to some lead actor starring in the patriarchal movie of his own life as she is the sole emotional support system for the entire family, carrying out the lion’s share of the unpaid domestic labour. This takes its toll mentally, physically, and emotionally. Perhaps if societally we address these complexities we could promote healthier relationships.
I have personally met very few older women, including ones with good marriages, who indicate that if their husband died, they would contemplate getting married again.
The signing into law at the beginning of May of the new Court Proceedings (Delays) Act 2024 gave me a black laugh.
This act will effectively afford litigants a form of redress if their cases are not concluded within a reasonable time frame. It’s not that, intrinsically, it’s a bad idea, it’s that it’s the wrong way to look at it.
We need to fundamentally reform our legal system and court proceedings.
Anyone who tries to access justice on the civil side of the system, and not just in divorce proceedings, knows just how broken the system is and how everyday justice is denied to citizens, a shameful hole in a functioning democracy.
Of course, this assumes that a politician would emerge who would face down the legal profession and communicate to them that they are in the service industry and therefore need to adapt to their client’s needs while surviving politically — not an easy feat.
Experience shows that any attempts so far to enact reform (shout out to Alan Shatter here) in the legal system run into the sand and end in the reformer being sidelined ostensibly for reasons that have nothing to do with the fact that they tried to carry the reform the troika demanded back in 2013.
The powerful legal profession lobby is intertwined with the Government and many high-profile politicians have brazenly blocked reform by gutting legislative proposals as vested legal interest wins out every time over public interest.
Bottom line, we badly need to craft a more affordable, more compassionate divorce system because, as my lunch revealed, the ending of a marriage, for many here, is a deeply debilitating marathon.
In the meantime to those of you trying to move forward with the next chapter of your life hang in there, as the old saying goes ‘this too will pass’.