Much has changed for the better in family law procedures, but much more still needs to be changed, writes Mary Hayes
The findings of the Irish Times poll on attitudes to divorce will come as a reassurance but not as a surprise to those involved in family law. It is timely and, taken in conjunction with Carol Coulter's upcoming report on the operation of the family law courts, provides a good opportunity to open a debate on how the system is operating and on what changes need to be made.
On reflection, though I did not think so at the time, it was just as well that the first divorce referendum in 1986 was defeated. We simply were not ready for divorce.
We had very little family law, there were few specialist practitioners, the judiciary by and large was unready and there was little general awareness of the complexity and subtlety of many of the issues involved in marriage breakdown.
Since then, a great deal has happened. The necessary underpinning legislation has been put in place and the jurisprudence has developed significantly.
The early judicial view which saw the family courts as a penal or punishment posting has long disappeared to be replaced by knowledgeable and sensitive judges who, by and large, take family law seriously. In addition we have seen the emergence of significant number of specialist practitioners.
All of this is to the good and undoubtedly is part of the reason why public attitudes to divorce are so positive.
It is only part of the reason, however, and it cannot disguise the fact that the family courts arouse antipathy and suspicion in some quarters, that the procedures and practices are frequently frustrating both for the practitioner and for those seeking divorce and that there is a serious need for change in certain aspects.
The first and most obvious problem is that we do not know enough about the way the family law courts operate. This is in part because of the in camera rule - cases are not reported and the raw material is not available for scholarly and comparative analysis.
We don't know if there are patterns, we don't know if there are inconsistencies, we don't know if the aggrieved claims of men's groups are based on fact or are no more than special pleading.
All the more important then, the upcoming study by Carol Coulter - the first objective and informed analysis of what goes on in the family courts and something which will be an essential starting point for any realistic discussion on reform.
There are some immediate issues though.
As in all other services the first problem is one of resources - they simply have not kept pace with the demand. Delays and log-jamming have reached crisis proportions. Court facilities are inadequate, especially outside Dublin.
Anyone who has experienced court hearings in the country circuit will quickly understand this point. In most circuits it would be usual to have up to 20 cases listed for hearing on the one day provided for family law on three or four occasions each year.
One judge recently was driven to hearing cases for about 20 minutes each in order to try and reduce the ever-growing list.
More than that, the conditions are often appalling and inappropriate. Clients are packed together outside the courtroom, consultation rooms are virtually non-existent so that privacy and dignity are the first casualties. Clearly the case for more family law judges is obvious, as is the need for better facilities.
It is important to stress too that cases have become more complex, especially since, in a booming economy, financial and property stakes are now much higher.
Many cases brought to the Circuit Court, for example, require a two- day hearing and High Court cases can take even longer. Cases are frequently delayed for a year or more, often postponed on several occasions because of the unavailability of hearing dates and those involved are forced to live their lives in a state of suspended irresolution, unable to plan ahead, uncertain and often with growing frustration and bitterness.
This long drawn-out process often discourages genuine attempts at settlement, especially if one party feels it is in their interest to drag out proceedings or when the absence of a court date means there is no incentive for lawyers or clients to settle.
It should be noted that separation and divorce can be resolved other than through court proceedings. Mediation has been around for many years. It is still undeveloped and its potential is waiting to be tapped.
In particular, mediation, while it may rarely manage to resolve all of the outstanding issues, can resolve some, maybe even most of them. This incremental approach can help streamline the later proceedings.
It is important to stress the extent to which family law barristers and solicitors strive to resolve cases before going to court and indeed to a great extent, judges greatly encourage this, often in a proactive way. This is a reality and one which is rarely publicised.
I stated at the outset that family law in Ireland is relatively new. It has had a steep learning curve and has been continuously short on resources but it has also been to some extent a victim of its own secrecy. Much of this privacy is in the interests of clients and this is not a situation which should easily or casually change but the secrecy has had negative effects.
Until Carol Coulter's study there have been no objective fact-finding and analytical studies of the operations of family law. More studies of this sort are needed, both as a basis for realistic change and to dispel popular myths and misconceptions.
A great deal that is positive has been achieved over the past 10 years, but the system is in urgent need of shake-up and reform.
This can only happen if first of all we know more in a structured way of how the current system operates and only too if practitioners become more involved in seeking to change and shape the system within which they operate and for judges to lead and direct this change.
There are many other issues - cost, public awareness, the simplification of procedures. Now is the time to start.
Mary Hayes is a family law specialist and a partner in Gore and Grimes Solicitors.