ON Thursday week, divorced becomes legal in Ireland. Yeats, who argued in the Seanad for the legalisation of divorce all those decades, ago, must be smiling somewhere. After, two referenda in 1986 and 1996 in which opposing sides argued as bitterly as any unhappily married couple, divorce will finally enter Irish life, slipping, into the mainstream of our existence almost unnoticed after all the argy bargy.
"We have over 90,000 separate people in Ireland, which means approximately 45,000 couples, but it is impossible to know how many of these will, actually seek a divorce," says Alan Shatter, TD, a family law specialist and author of Family Law In Ireland.
"I suspect a lot of people will stand back to let the new legal provisions settle down before applying. They've waited a long time already - a little bit longer won't make such a big difference," says Shatter.
Couples who have been living apart for more than four years are eligible for a divorce and, according to a new book entitled Divorce In Ireland, at least 60,000 separated people in Ireland have been living apart for the requisite period. The authors of the book are Paul O'Shea, solicitor, and Kieron Wood, barrister. Both specialise in family law.
"My advice is to wait and let a few cases go through first," says Mags O'Brien, former chairperson of the Divorce Action Group. "It will be easier for the solicitors to get the lie of the land after a few cases. You don't want to be the guinea pig and Kieron Wood note, in their book that, it is usually a woman who seeks a judicial separation or a divorce. Alan Shatter corroborates this point: "There are a whole series of grounds for this, including violence and desertion."
. Assuming that it is a woman who will go looking for a divorce, how should she proceed?
The first step is to find a good solicitor who specialises in family law: "Word of mouth recommendations are the best," says Mags O'Brien. "Also, the "best is not necessarily the most expensive."
People will be entitled to legal aid from the Legal Aid Board, which has 30 centres all over the country. Chief executive Frank Goodman says that the board already has a waiting list of more than 700 people looking for divorces. According to Paul O'Shea and Kieron Wood, anyone with a disposable income of less than £7,350 a year may be entitled to legal aid: "The minimum contribution - payable by a person whose disposable income does not exceed £5,060 a year - is £4 for legal advice and £23 for legal aid. The maximum, contribution is £595."
For those who are not eligible for legal aid, a divorce will cost, says Alan Shatter, an absolute minimum of £1,000, with 21 per cent VAT on top of that: "A divorce will only cost this amount if the couple has already resolved all the financial consequences of separation and all the issues relating to the bringing up of the children." Such couples will probably have already been to court for a judicial separation, for which they will have paid a minimum of £3,000, however.
. Will contentious divorces cost more?
Contentious judicial separations cost a lot more, says Shatter, and so will contentious divorce cases. "Where there are disputes over property or the children, you can incur a lot more expense in legal costs. The cost of getting a child psychiatrist's assessment alone can run to £1,000."
Paul O'Shea predicts that most divorces will cost something in the region of £3,000 to £5,000. Anne Dunne SC, who specialises in family law, says that some people can save money by bringing their own cases to court and filling out the forms as "personal litigants". "But it is wiser to have a solicitor and a barrister, so that all the information necessary is then before the judge."
To return to Mrs Average. Having found her solicitor, she will be asked whether she has been to counselling or to mediation (it is "her privilege", says Paul O'Shea, to say if she doesn't want to go).
The solicitor will have to ascertain whether the marriage is valid in the first place. According to Divorce In Ireland, grounds for a civil declaration of nullity include a marriage where the union was not voluntary or where one of the espouses was underage. With a civil nullity decree, says Paul O'Shea, the wealthier partner does not have any financial obligations to support the other "spouse" (but there is an obligation to support their children).
If the marriage is valid, then Mrs Average will be asked on what grounds she, is seeking a divorce. A divorce may only, be granted if the spouses have lived apart for at least four of the five years before proceedings began, there is nob reasonable prospect of the couple getting back together, and both spouses and any dependent children have been (or will be) properly provided for.
The issue of living apart is open to interpretation. Paul O'Shea is of the opinion that the case would not be dismissed if the couple had been living under the same roof for the four year period but had been effectively living, separate lives and could prove this.
Mrs Average's solicitor will want to find out about the children and the family assets and income. "Some wives will know everything about their husband's finances. Some will know very little," says Paul O'Shea. If the latter is the case: "She can get a court order obliging her husband to disclose all his financial affairs, including his pension rights. The pension is often the second biggest asset after the family home, and must be divided in an equitable way."
. How will the pension be divided?
The only pension rights which may be taken into account on divorce or separation are those which accumulated during the marriage. But dividing the pension can be complicated. As Paul O'Shea and Kieron Wood explain in their book, with a defined benefit scheme a worker can predict in advance, what percentage of his or her final pay will be received as a pension. But a defined contribution scheme usually works more like a conventional savings plan so the eventual value, of, these benefits is unpredictable.
"The court will look at all the assets and divide them as it sees fit," says O'Shea. The family house may be transferred from one partner to another if this is seen to be the best way of protecting the interests of the children: "It is often given to the wife but not always. The ages of the children will usually determine this. In relation to the family home, the natural inclination of the court is to keep the children with their mother. But the court might also decide that the wife should live in the house. until the children are older, at which time the house can be sold."
There is no point, say Paul O'Shea and Kieron Wood, in a spouse disposing of cash or property with the intention of trying to prevent the other spouse obtaining his or her rightful share because the Divorce Act allows a court to set aside transactions completed up to three years, before the divorce application, even if the asset has been transferred out of the State.
Once the divorce has been granted, the court may make an order for the payment by one spouse to the other of maintenance or a lump sum. Maintenance payments may be secured against property, or else the court may order "that they are deducted at source from a spouse's salary. Maintenance is no longer payable when a child ceases to be dependent. If a divorced spouse dies without providing properly for a former spouse, the surviving spouse, if still single, may apply for a share of the estate of the deceased.
Kieron Wood is dissatisfied with this lack of finality in the current divorce legislation: "After 20 years if a divorced spouse wins the Lotto, the other can come and claim a share. If you get a divorce there should be no fear that someone will re emerge from the shadows in years to come." Anne Dunne adds: "The court provisions may be ongoing, so there is no such thing as a clean break. People can keep coming back to court seeking to change their arrangements. This sort of flexibility is fine with regard to the children, but not when it comes to assets.
What about people who have been separated for 20 years and now have new families? If they seek a divorce now, is the richer spouse going to be compelled to support the spouse he or she hasn't seen for 20 years, a person who has played no part in the earning of their wealth?"
. How long will it take Mrs Average to get her divorce?
Paul O'Shea reckons the simplest divorce case, assuming there is not too much court congestion, will take about six months to go to court. Alan Shatter believes that "a reasonable period" to wait is three to five months.
. What are the benefits of getting a divorce, rather than a judicial separation?
Once you have a divorce, you are no longer married, so you are free to remarry," says Paul O'Shea. "Divorce is as final as you, can got judicial separation is not. With a judicial separation, you can resume, co habitation without going back to court. Alter a divorce, you are a single person from a tax point of view," says Kieron Wood.
"Many people want a divorce because their marriage has been over for years," says Alan Shatter. "It is a sham, and they want the law to recognise this." He says that divorce will be helpful to the increasing number of people with nullity decrees from the Catholic Church. Such annulments are not the same as civil annulments, and are not recognised by the State. After a church annulment if the person remarries it is seen as bigamous by the State.
. What about the children?
Divorce and remarriage are not necessary to copperfasten the inheritance brights of the children from a separated person's second relationship, says Kieron Wood: "Non marital children have the same rigid of inheritance as other children now.
He is critical of the outcome of many judicial separations, where the mother is almost always granted custody of the children and the father only has access: "It ends up that the father only gets to see his children on a Saturday afternoon. If you want real equality in relationships, fathers should have the right as well as the duty to care for their children." Mags O'Brien adds: "Joint custody should be given where possible. If a man does not have joint custody he often loses contact with his children."
Anne Dunne SC disagrees: "In my view, the court has to make a decision toe give one parent custody and access to the other. Children must know where their home is, their base. Experts have found that spending a couple of days here and a couple of days there is too unsettling for children."
LIAM O Gogain, founder of Parental Equality, believes that parents should be entitled to share their parental role both and within and outside marriage that children are happier spending equal time with each: "With the joint custody solution, everyone is honoured and supported, and expenses are shared."
The experts agree that the best route for a couple is to go for mediation before court proceedings. Kieron Wood, who learned a great deal from the breakup of his own marriage, observes: "The Government needs to put a lot more money into arbitration and mediation. Couples should be obliged to come to court with everything sorted." Mags O'Brien adds: "Try to sort out the issue of the children in a sane way before you go near a solicitor. And never use them or involve them in fights over money and property. Don't ask them to take sides."
Alan Shatter says that "children are sometimes seen as prizes to be fought over, with whoever gets custody feeling like they have won the battle. Solicitors and barristers should encourage parents to sort out disputes about property and children before court." If they leave such issues for a judge to decide, "they will find themselves involved in wearying, long drawn out and expensive proceedings".