Throwing light on family law

The publication yesterday by the Courts Service of the first Family Law Matters, an account of how the courts in practice deal…

The publication yesterday by the Courts Service of the first Family Law Matters, an account of how the courts in practice deal with separation and divorce, is an important landmark in the development and understanding of an area of law that touches thousands of citizens.

The report, the first lifting of the veil off in-camera hearings, delicately reconciles the right to privacy of couples with the constitutional imperative that justice should be conducted in public. That it should be as readable and accessible to the non-legal community is a welcome surprise, as the Minister for Justice, Mr McDowell, observed.

Crucially, the report and its successors, will help to build a body of precedents that will ensure a degree of consistency and, hence, predictability in the administration of family law that otherwise is impossible. It will also allow us to begin to discuss in a concrete way the experience of divorce and separation, enabling legislators to review the law 10 years after divorce was introduced. If, for example, as appears to be the case, about two thirds of divorce proceedings follow judicial or legal separations, is the four-year separation requirement too onerous in that its main effect is to embroil couples in a costly double legal hurdle?

Although the main chapter of the report and its statistiical analysis is confined to the experience in the Dublin Circuit Family Court in October last, practitioners say it certainly reflects their experience. And in doing so it dispels a number of myths about family law: the fact that some 90 per cent of cases are settled before the court hearing suggests that most divorces are not a "battle to the death"; the complaints of organisations representing fathers that the courts favour mothers on access to children or custody appear to be debunked by the level of pre-court agreements; and the reality that 117 of the 183 cases examined were actually based on applications made in 2006 suggests that the legal process may not be as Bleak House-like as many fear.

READ MORE

The publication of the report should make the settlement process easier by making clear to the parties involved what custom and practice is and what the courts will wear. Interestingly, for example, the report finds that couples tend to prefer a "clean break" financially, with many opting for a disproportionate allocation of the family home or a lump sum instead of continuing spousal maintenance. In the case of children, however, most fathers found themselves paying continuing maintenance, with figures ranging widely, depending on means.

The report also sounds an alarm on costs. It is clear that a large proportion of litigants acted for themselves in court to save on the prohibitive cost of lawyers. An old legal maxim has it that a plaintiff who represents himself has a fool for a client, and although "lawyers would say that", it is particularly worrying when this happens in cases involving complex assessments of assets, often concealed, or disputed arrangements for child custody. It is an issue the Government needs to review.