Only 10% of family law cases are contested to the end

Having analysed a month's decisions in the Dublin Circuit Family Court Carol Coulter found most cases are settled, often quickly…

Having analysed a month's decisions in the Dublin Circuit Family Court Carol Coulterfound most cases are settled, often quickly, and the people concerned get on with their lives.

Extracts from the report Family Law Matters
Case by Case: A Month in Dublin Circuit Family Court

Lack of information severely hampers discussion on how family law operates in this country. Not only has the in camera rule closed the courts to observers but statistics on what happens in court, shorn of specific detail, have also been limited.

Nonetheless, some knowledge of how the family courts are working should be available from a study of court records.

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In 2005 over 97 per cent of all divorces and judicial separations were decided in the Circuit Courts, a total of 4,341. Over a third of these were decided in Dublin where 1,126 divorces and 309 judicial separations were granted. There were also 380 District Court appeals decided here, indicating that Dublin Circuit Court accounts for about a third of all divorces and judicial separations decided in the State.

A useful snapshot

While Dublin cases may not fully represent all family law cases heard in Ireland (few will involve decisions on the family farm, for example), a review of decisions there over a given period can provide a useful snapshot.

I chose October 2006 in the Dublin Circuit Family Court and examined the cases listed on the Courts Service computer system back to the beginning of 2003, the first year in which all cases were logged on the new computerised system. I identified 183 cases in all decided from October 3rd to October 31st including 22 appeals from the District Court.

The records showed how long they took, how many were settled, how many went to a full hearing, and what orders were made. I examined the contents of the agreements (known as "consents") that were filed and made rules of court separately.

Fastest case took four days

A total of 161 cases were decided in Dublin in the month of October 2006, with 99 of those cases initiated earlier in the year. The fastest case concerned a divorce, where both parties consented, where the papers were lodged on October 23rd and the order granted four days later. According to court staff, an order can be rushed through where one of the parties is terminally ill. Apart from that, the shortest case took six weeks from initial application to final order.

Early agreement

Of the 99 cases originating in 2006, 81 were divorce applications where both parties consented to the terms of the divorce. In 65 of these the only order made was a blocking order, extinguishing the inheritance rights of both parties against the estate of the other. In a further six cases a blocking order was accompanied by a pension adjustment order, which may have been nominal. Therefore in only 10 of the divorce cases decided on consent were other issues such as the family home, other property, maintenance and the custody of children part of the settlement and filed as a rule of the court.

This suggests that many issues are decided earlier in the process when the divorce applicants have negotiated a separation agreement or gone through a judicial separation.

Nine of the applications for judicial separation initiated that year ended in consents, with the terms filed as schedules or rules of court. Of the remaining 2006 cases, three (two divorces and one judicial separation) went to full hearings and judgment, and six concerned other matters like guardianship of children, declarations of parentage and protection or safety orders.

Most cases settled

There were fewer divorces by consent among the cases initiated in earlier years. Of the cases that started in 2005 there were 14 divorces granted on consent and 11 judicial separations. Two divorces and four judicial separations went to a full hearing ending in a decision by the court. Of the 2004 cases two were divorces on consent, eight were judicial separations on consent, and three divorces and two judicial separations went to trial.

Of the 161 cases concluded in October, 103 were divorces where the terms were agreed between the parties, and 33 were judicial separations where the terms were agreed. Sixteen cases went to a full hearing and a court decision. Nine of the total concerned other matters like guardianship, declarations of parentage or protection.

10 per cent fought

These figures show that only about 10 per cent of family law cases are contested to the end. Contrary to popular perception, most are settled and the people concerned get on with their lives.

It is clear from the files that the settlement can come at various stages and may follow years of bitter dispute and protracted negotiations. For instance, cases begun in 2003 or 2004 had often gone through several hearings on matters like discovery and access to children before eventually they end with a settlement.

In other cases, the files show that where anything up to 20 court appearances were registered, a long battle preceded the final settlement.

But other cases have ended with significant agreement between former spouses. The large number of divorces where the only orders made were blocking orders, extinguishing each other's succession rights, indicates that many couples prefer a "clean break" to end their marriages.

Children and maintenance

At the other end of the spectrum lie the cases that were contested all the way. Here the main problems appear to relate to custody of children and maintenance, with 11 of the 16 fully contested cases involving children. In six of the 11, joint custody was ordered, usually with the child or children living with the mother and access either as agreed between the parties or as laid down by the court following hearing of the evidence.

Court-ordered access can include complex arrangements to ensure that the child spends substantial amounts of time with both parents.

In three cases the mother was granted sole custody. In one of these the father did not appear in court while in another he was granted only supervised access, suggesting allegations of abuse found credible by the court.

Orders relating to children were sometimes combined with other orders relating to property, maintenance and the family home, while in other cases these were the only matters decided. Maintenance was an issue in 11 cases.

Amounts ordered varied widely, presumably reflecting the different circumstances of the applicants. In one case a maintenance payment of €8 a week per child was ordered while in another a husband was ordered to pay €1,550 a month of which €650 was for the wife and €300 each for the three children, the only case among the 16 where maintenance for both wife and children was ordered on an ongoing basis.

In a case where substantial property was divided the husband was ordered to pay €866.66 a month for the maintenance of the couple's child.

In general, the maintenance payments ordered by Dublin Circuit Court in October were €100 to €150 a week per child. There was one case where there were no dependent children and maintenance of €120 a week was ordered for the wife.

The family home

The fate of the family home was decided in 11 of the 16 contested cases. It was ordered to be sold in five cases with the proceeds divided either 50/50 (three cases) or 60/40 (larger share to husband in one case, to the wife in the other). In two instances the house was to be sold when the youngest child was no longer dependent and the proceeds then divided 50/50.

In two further cases the husband's interest was transferred to the wife and in two she had the right to occupy the family home for life. In both these latter cases it appeared the transfer of the husband's interest was in lieu of maintenance.

Other property issues included two cases where pension adjustment orders were adjourned and one where the husband's retirement lump sum and the family's savings were ordered to be split 50/50.

Length of marriage

Marriage duration does not seem to be a major factor in whether it ends in divorce or judicial separation. Among the divorces granted, three were to people who had been married more than 40 years and 18 were granted to people married more than 30 years. The rest were sprinkled fairly evenly among those married for periods ranging between six and 30 years.

The duration of a marriage before a judicial separation is sought may be a better indicator of when marriage breakdown occurs. But here too there is a wide spread.

Consents

Sixty-four of the cases concluded in the Dublin Circuit Family Court in October had consents filed in court. Forty-eight of these consents were available for analysis of the terms, 28 linked to judicial separation, 18 to divorce and two to guardianship.

Children

Agreements relating to children were made in 21 of these cases, with custody and access referred to in 18. In 16 of the cases joint custody was agreed, with the child or children residing primarily with the mother in 11, and sharing time equally in five. In two the wife had sole custody, with access for the husband.

In most cases access was either "as agreed", or according to detailed arrangements handed in to the court, normally specifying that the child or children would spend two weekends a month and at least one week night with the father, with further detailed arrangements for festival periods and holidays.

In one case the children's wishes were mentioned in relation to access.

In most, but not all cases, the father agreed to pay maintenance for the children. The amounts varied from €100 per child per month to €173 a week (about €700 a month).

In two cases no maintenance was agreed, apart from VHI cover in one, and in the other the wife acknowledged that the husband was getting less than his fair share of the family home in lieu of maintenance.

In two other cases no maintenance was agreed apart from half the child or children's educational and medical expenses. In the 13 other cases where monetary amounts were agreed, the average rate was just over €400 a month. Only in three cases was the amount agreed less than €75 a week.

It was relatively rare for wives to be paid maintenance and the amounts varied widely. In two cases where dependent children were also being paid maintenance, the wives were paid €400 and €580 a month respectively.

In one of the three cases where maintenance was paid to the wives where there were no dependent children, €571.38 was being paid for four months until she became eligible for the non-contributory old-age pension. But she did receive ownership of the family home.

Division of property

It is clear from the consents that couples prefer a "clean break" to the link represented by maintenance. Often this is achieved by apportioning the family home disproportionately in lieu of maintenance. A few lump sums were also paid.

The family home was dealt with in 43 of the cases. In 26 of these it was transferred to the wife, normally on payment of anything between €20,000 and €320,000. Explanations for these sums are not recorded but the variations could be attributed to house value and the outstanding mortgage and to whether or not maintenance was being paid as well.

In four of the 43 cases either the wife already owned the house or she was permitted to live in it without ownership being specified. In three cases it was agreed that it be transferred to the husband, for the sums of €10,000, €110,000 and €210,000 respectively.

In the 10 remaining cases it was agreed that the family home be sold, and the proceeds divided. The ratio of the division ranged from 50/50 (in three instances) to 75/25, with the average range being 45 per cent to the husband and 55 per cent to the wife.

Pensions

Pensions and other assets featured in 42 of the 48 cases available for analysis but in most of these pensions were referred to only to specify that there was no claim or that a nominal pension adjustment order was being made. In two of the 42 cases it was agreed that the wife should receive 50 per cent of the husband's pension, and in two others that she remain the beneficiary of his contingent pension (should he die). In another the wife received a refund of his pension contributions.

The most common form of other financial adjustment was provision for life assurance, either to guarantee maintenance of children or mortgage payment. Such payments were agreed in six cases. In 20 of the 42 cases the parties specifically stated that they had no claim on each other's pension or other assets.

Some conclusions

It appears that there was not a significantly different outcome between a negotiated settlement and a judgment of the court in Dublin Circuit Court. Custody of children, access arrangements, the disposal of the family home, maintenance and other financial matters seem to fall within certain broad parameters whether negotiated or decided.

One difference concerns children where the negotiated agreements almost all resulted in joint custody while in three of the 11 disputed cases sole custody was awarded to the mother. Pension division also featured more in the disputed cases.

Parties generally seek a final settlement except where children are involved. Dependent children usually, though not always, mean maintenance and can influence what happens to the family home.

In only seven cases out of the total of 154 divorces and judicial separations granted in the Dublin Circuit Family Court in October 2006, that is, approximately 5 per cent, did the wife receive ongoing maintenance payments.