In February 1997, following a wafer-thin referendum result, divorce became legal in Ireland. Ten years on, Kathy Sheridanexplores how a measure which some predicted would have apocalyptic social consequences has worked out in practice.
This week, in Wicklow town courthouse, a sliver of Irish family law history was made. A man and a woman, each represented by lawyers, were judicially separated, not unusual among the 1,000 or so judicial separations that will be granted this year. What made this one remarkable was that the opposing lawyers and their clients had collaborated towards a common goal of fairness.
"In the normal situation, your client is expecting you to hop up on a white horse, gallop onto the battlefield, cut a swathe all around you and leave a trail of blood and guts behind," says Bray solicitor Joe Maguire, who represented one of the parties. "Then, months or years later, case completed, the lawyer goes back to the office, closes the file and forgets about it. However, your client is left with the consequences. One of the parties could be traumatised for years to come."
Aaaah . . . You didn't know they cared, did you? In fact, you probably thought that for lawyers to adopt a collaborative rather than the customary "knock 'em down, drag 'em out" approach, a lobotomy might be required. But for some, it needed only the sharp nudge of experience. "When you've been trekking down to the Four Courts for 30 years, you begin to think that there must be a better way," says Muriel Wall of McCann FitzGerald solicitors, a veteran of many battles.
Joe Maguire's "opponent" in this week's piece of history was solicitor Pauline Kennedy, who suggests modestly that, as there were no children involved in the case, it would not have been a difficult one in the first place. "But the way it was handled minimised any difficulties . . . the kind that can arise if, without meaning to, say, someone's representatives forward a letter that is couched aggressively. That's the sort of thing that raises hackles and things get blown completely out of proportion."
But the case after that - also rubber-stamped - did involve children.
From now on, the hope is that this will be a common occurrence.
Collaborative practice is a halfway house between mediation (involving a single mediator, who is not necessarily legally trained) and full-on war, where the threat of court action always hangs in the air.
The critical aspect of collaborative practice (apart from good faith, full disclosure and face-to-face meetings), is that once the clients have agreed to participate, each of the parties involved - including the lawyers - must sign a binding agreement, stating that if the process fails, the same solicitors cannot go on to represent their clients in court.
"It means that information can be disclosed without fear that it will be used in court against you," says Rosemary Gantly, a Bray solicitor. "It does require a different mindset, so it is difficult. You are trained to be so protective about your client, and usually the other party is just a name. But in practice, it's not that hard because you're getting face to face with the other person and that makes it totally different."
Not every lawyer is suited to collaborative practice, says Barbara Smyth, managing solicitor in the Wicklow Law Centre (a branch of the Legal Aid Board, with 60 of its 90 lawyers now trained in collaborative law), which will be representing its first applicant in a collaborative law case in court on Tuesday. "There is a skill set in the practice of family law, a degree of sensitivity."
As the personal injury cash cow dries up, some of its brasher practitioners are apparently adapting their milking machines to family law. There lies madness, in a scenario where wounds are already rubbed raw and lives are being torn apart.
Does anyone enter into separation or divorce more casually now, as was predicted by many anti-divorce campaigners 10 years ago? "I think changing a life partner is acceptable now . . . but I don't think anyone does it casually," says Muriel Wall. "I can only think of one client who just thought this fella didn't shape up and wanted to end it. But that was just one in 30 years. For a lot of the older couples separating, it's because they're looking at the spouse across the kitchen table and they don't really like that person anymore. Some can be very mature about that. They'll reason that they had 25 good years and were only babies when they married and they will be civilised now about it. But most will manufacture 10 reasons why they feel like that - such as the husband spending all his life at rugby matches or one of them has had a number of affairs. Well, I would say in that case that there were problems in the marriage that were not being addressed. Adultery is usually the manifestation of a problem, rather than the cause."
WALL HAS SEENthe gamut of relationships, at their best and worst. She cites the case of the couple who started out in the modest little semi-d, but he has become very wealthy and wants her to move on, leaving behind the home and the friends she knew from childhood. "She's leading a life of quiet desperation. Things may not seem bad but her soul is drying up inside. There are only so many golf trips or holidays you can take." Then there was the husband who was doing well financially, but got a little heart problem, and one night he said: 'Look, I don't want to do this any more, I'm going to take the package.' And she said: 'What?!' She had grown accustomed to the rather nice life he provided." Or it can be a tragedy of timing. "It may be that a woman is very unhappy, has gone for counselling and is trying to work things through, but it's at that time that someone new walks into her life - and that's a disaster, because then the new man or woman becomes the focus of the problem, rather than the couple being honest and admitting they had been just muddling along. It can be the catalyst of a 50th birthday, the death of a parent, a cancer scare . . . and the question is asked, 'If I have 10 years left, how do I want to live it?'.
"People now call these decisions brave. In the past they would have been selfish and reckless."
And which does she think it comes down to? "In the end, it's a decision between two 'bads'. Or - as it says in a book I'm reading - when the pain of staying is greater than the pain of leaving. You never know how it's going to pan out. You can only help them to go through the separation."
While Wall is sanguine enough about older couples separating, what has surprised her is the number of people in their early thirties, "married for four to five years, maybe with a small child, and where it has gone horribly wrong but where they haven't got to the stage where there is any cake to carve up. That can be very emotional and you ask yourself why - with the pre- marriage courses and counselling and all those things that many of us didn't have?"
FOR ALL OFthese reasons, in 2005, the number of divorce applications crept past 4,000. Some 6,000 people a year are looking to formalise their marriage breakdown. The broader picture shows that almost one-third of births take place outside of marriage. Many people are not bothering with marriage at all; the proportion of cohabiting couples more than doubled to 77,600 between 1996 and 2002. Is Irish family and sexual life in general in a state of amoral, terminal flux? For many, the worst predictions of the anti-divorce lobby have apparently come to pass.
But it simply is not so, according to Dr Tony Fahey, research professor with the ESRI. "Far from being in unprecedented flux, it can reasonably be portrayed as having settled down somewhat over the past decade, following a period of turmoil and transformation that had extended over the previous three decades," he says.
By 1997, when divorce entered the Irish picture, the suggestion was of a tsunami threatening to engulf us. In other western countries, the wave of liberalisation of divorce law that took place in the 1960s and 1970s had been immediately followed by a spike in divorce rates. Celtic Tiger Ireland would have been expected to follow suit.
Yet, says Dr Fahey, there was no post-liberalisation spike in Ireland. The increase in married couples separating between 1996 and 2002 was of a similar order to that which had occurred in the decade prior to divorce.
A further indication of how the introduction of divorce had less of an impact than might have been expected was the lack of any dramatic shift towards divorce as a way of resolving broken marriages. Before the Divorce Act, says Dr Fahey, when judicial separation orders were obtainable from the Circuit Court but at considerable cost in time and money, a more common solution was to seek the simpler, quicker and cheaper remedies available in the District Court, such as orders for maintenance, child custody or access to children. There was also a heavy reliance on applications relating to domestic violence, "the most heavily used family law proceedings of all".
Ten years on, the District Court retains its dominance. In 2005, the number of successful applications under the Domestic Violence Act alone exceeded judicial separation and divorce orders by more than a thousand.
"This adds to the sense that the arrival of divorce . . . was not the transformational event that both its proponents and detractors had suggested in advance that it would be," says Dr Fahey.
IN FACT, FARfrom dying as a concept, marriage has continued to thrive, despite access to pre-marital sex, cohabitation and child-bearing to a degree unknown to previous generations, not to mention the absence of financial incentives available to previous generations. While people in their twenties became increasingly reluctant to marry (echoing patterns last seen in the 1930s and 1940s), they compensated by becoming more likely to marry after the age of 30.
By 2005, there were 20,723 marriages in the Republic (up from 15,631 in 1997). There were 4,126 divorce applications. Contrast this with Northern Ireland, where the number of marriages fell to 8,100 in 2005, but the number of divorce petitions rose by 18 per cent to 3,311.
Births outside marriage have also stabilised. A trend that took off around 1980 and reached 31 per cent in 2000 "abruptly plateau-ed out" after that, according to Dr Fahey. Yet the birth rate (which had declined to 47,900 in 1994), increased by 26 per cent between 1994 and 2004, unhindered by increased housing costs, the poor availability of childcare and the flood of women into the labour force.
One of the most memorable planks of the anti-divorce campaign was the billboard slogan "Hello Divorce, Bye Bye Daddy". Its logic was never quite clear. As statistics show, there was no shortage of second families or children born outside marriage prior to 1997, when the same challenge existed to both fathers and mothers to maintain contact with and provide for their children.
Anecdotal evidence, however, suggests that it is overwhelmingly women who initiate separation and divorce proceedings (and it is also mainly women who instigate the counselling/mediation process). How any separating couple negotiates the subsequent morass of housing, maintenance, custody, access and profit- sharing remains a mystery.
Fathers' rights groups continue to argue that the courts rule consistently in favour of women. Because proceedings take place behind closed doors, only the participants know precisely what ensues. Anecdotally, however, it is believed that the vast majority of separation and divorce cases are settled, which suggests that the vast majority of men and women are not, in fact, at loggerheads (at least legally), with one another or the courts.
As for the thorny allegation that the courts consistently favour the mother in custody and access disputes, court statistics show that only a tiny percentage of applicants are refused. Out of 4,598 applications in 2005, over a third of the total were withdrawn (suggesting agreement of some kind) or struck out (because the applicant failed to show).
Only 140 were refused. In any event, the number of men seeking sole custody is estimated to be quite small.
One observer suggests that if there was a bias in the past, it was because an overwhelmingly conservative, male judiciary simply could not conceive of a man carrying out the "womanly" chores of caring for children. Ironically then, it may well be the arrival in numbers of female practitioners and judges that has corrected the balance.
FOR NOW, HOWEVER, much of this is guesswork. Behind closed doors, a re-ordering of the traditional Irish family and society is taking place every day - farms and businesses are being divided, houses being sold and resources transferred in all kinds of miserable, heroic or astute ways, and we are no wiser about the forces that are driving it.
The appointment of Dr Carol Coulter to head a pilot project to produce reports on trends and statistics within the hitherto closed family law courts promises to shed light on the reality. Her first report is due this month (one of several due) and should provide a first glimpse into what happens in family law, with some details of law cases, together with some judgments and statistics.
While the headline stories from the High Court and the Supreme Court tend to involve vast amounts of property and money, it is the everyday cases - where the finances amount to maybe 1½ average incomes, a semi-detached house, and perhaps a mountain of credit card debt - that occupy the Family Mediation Service (FMS), which came into being 11 years before the Divorce Act (a fact that is in itself revealing about pre-divorce Ireland), and marks its 21st birthday this year. Run under the auspices of the Government-funded Family Support Agency, under the patronage of Michael O'Kennedy, the FMS supports 544 agencies, including counselling services such as Accord and MRCS. Of the 1,500 couples for whom it mediated in 2005, 60 per cent reached some form of agreement. But significantly, 5 per cent of those who started eventually withdrew on the basis of stark economics: they realised that they could not afford to separate.
Polly Phillimore of the Family Mediation Service says that separation can be "incredibly difficult" for those with an average income, and particularly for fathers.
"The mother would traditionally stay in the home with the children, and society says he must share the parenting. But usually he ends up in rented accommodation alone, or worse, sharing with others. So how can he have children at weekends if all he can do is walk the streets with them?"
But whereas men seem to do worse at the beginning of a separation, ultimately they may do a lot better if they are not the main carers. According to Phillimore, it is becoming increasingly common for the mother, as the main carer, to be allowed to remain in the home until the youngest child is 18 to 23. But she must then split it, 50-50, with her former husband. However, in the meantime, the husband has been free to pursue more earning possibilities, perhaps start a second family, or buy a second home. Nonetheless, he gets half the proceeds of the first home.
But the fact is that all of these problems (and a great number of the remedies) existed in pre-divorce Ireland. Divorce ushered in remarriage. Fahey reckons that there are some 2,300 such marriages a year - 2,300 triumphs of hope over experience.
The social change over the past 10 years has been head-spinning, but few would attribute it - for good or ill - to divorce. Muriel Wall attributes the degradation in some areas of Irish life "to the Celtic Tiger and increasing pressures, such as the cost of housing - we have girls coming up by bus from Gorey to work here . . . That's probably caused greater change than divorce".
Dr Fahey, who has also examined the fall-out from the Celtic Tiger, remains sanguine. Many, he says, have pointed to marital breakdown and lone parenthood as signs that the quality of life has deteriorated. But too much can be read into such signs, he believes. "Marital breakdown can be interpreted as a consequence of rising expectations of intimacy and affection in marriage - a good thing in itself - rather than as a symptom of decay. Lone parenthood certainly brings certain vulnerabilities, especially if the family income is low, but the increase in this family type has to be set against the decline at the same time of other equally vulnerable family types, such as the poor, two-parent family with six or seven children that was common in the past.
"In general, for every new problem in family life that has emerged in recent years, one can point to old ones that have faded away."
Broken dreams: divorce rates
From 1997 to 2005, 22,427 divorces were granted:
199793
19981,408
19992,315
20002,740
20012,837
20022,591
20032,970
20043,347
20054,126