5 reasons why it's so difficult to get a divorce in Ireland

Analysis: getting divorced in Ireland is not as simple as just signing a piece of paper and moving on

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When you imagine a divorce, what comes to mind? Due to the proliferation of American dramas on Irish television, you may picture a couple in a boardroom, flanked by lawyers as they sign paperwork. A simple procedure, and one which is foreign to the Irish divorce regime.

The 1995 referendum, which removed the prohibition on divorce from the Irish constitution, passed by a razor thin margin after a similar referendum failed to pass in 1986. The resulting Family Law (Divorce) Act 1996 is a conservative piece of legislation that creates a number of hurdles spouses must overcome in order to obtain a divorce, ostensibly to ensure that the marriage cannot be 'saved'.

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From RTÉ Archives, RTÉ Radio 1's Review of the Year 1995 looks back at that year's divorce referendum with contributions from Archbishop Desmond Connell, Dr. Thomas Flynn, Michael Woods, Bertie Ahern, Richard Bruton, Rory O'Hanlon, Prionsias De Rossa, Úna Bean Mhic Mhathúna and John Bowman

Other than a referendum in 2019 reducing the time spouses must live apart before applying for divorce, and despite Ireland’s changing social landscape, our divorce legislation has not been amended in a quarter of a century. Today, obtaining a divorce is dependent on meeting three pre-requisites: a two year period of separation, proof there is no prospect of reconciliation, and ‘proper provision’ being made for the spouses and any dependent children.

So why it is so difficult to get a divorce in Ireland?

Mandatory court attendance

The Irish constitution specifies that a ‘court designated by law’ may grant a divorce, but only if it is satisfied that there is no prospect of reconciliation, and that ‘proper provision’ has been made for a dependent spouse or children.

From RTÉ Radio 1's Today with Claire Byrne, separation and divorce advice with solictor Orlagh Sharkey

Setting aside the question as to whether it is appropriate for the court to decide the likelihood of reconciliation, the 'proper provision' safeguard seems reasonable on its face. In practice though, this means that every couple seeking a divorce must go before the court, even if they have agreed on terms or have gone through mediation. This overloads family court lists, and creates unnecessary costs for divorcing couples.

Secrecy

While our constitution dictates that justice must be administered in public, the 'in camera' rule provides that family law cases can be held privately to protect the parties involved.

However, the ‘in camera’ rule contains vague language and harsh penalties. This means that there is very little court reporting carried out in the family courts. Additionally, overloaded lists in the Circuit Court mean that most judges do not have time to write judgements.

From RTÉ Radio 1's Today with Claire Byrne, solicitor Marion Campbell on the rise In divorce cases during the pandemic

As a result, we have very little data on divorce cases in the Circuit Court, where most divorces are granted. We don’t know how the majority of cases are conducted or decided. We don’t know why or how orders are being made, how long cases are taking, or what issues cause the most conflict.

Obscure process

In their 2019 report, the Joint Committee on Justice and Equality observed that there appeared to be no consensus, amongst judges or practitioners, on how family law proceedings should be conducted. On top of that, the ‘in camera’ rule has contributed to a significant lack of transparency in the system.

Understandably, many litigants feel unable to navigate the system without representation. Unrepresented lay litigants can become overwhelmed or misunderstand what they are required to submit to the court, delaying proceedings further.

From the RTÉ Today Show Podcast, why is the Irish style divorce on the rise in the US? With panelists Aileen Hickie, Shane Ross and Stefanie Preisner

In its 2022 Report of the Family Justice Consultation Process, the Department of Justice observed that litigants in the family court face delays, high costs and a traumatic process.

Unpredictable outcomes

Ireland has a common law system, a series of rules and principles developed by judges over centuries. The lower courts (District Court, Circuit Court) follow the precedent of the superior courts (High Court, Supreme Court).

Unfortunately, this system is proving ineffective for divorce cases. Judgments from the High Court or Supreme Court usually involve wealthy families or complex issues of law. These are of limited value in the majority of "typical" family law cases, most of which are heard in the Circuit Court.

Under the existing legislation, judges have a large discretion to redistribute assets with very little policy guidance and an absence of appropriate precedent to follow. What limited data we have indicates that this may contribute to unpredictable outcomes for divorcing couples.

From RTÉ Radio 1's Sunday With Miriam, Helen Goldin Mountcashell, Patrick Bergin and Noel Howard on the 19th century divorce case of Lady Louisa Moore Morgan and Captain Richard Morgan that caused a sensation in Ireland

Gender

While not a hurdle to obtaining a divorce, gender may play a part in the outcome. In Ireland, gendered expectations and the gender pay gap force women out of careers and education, weakening their economic mobility. As a result, women are more likely to need financial support when relationships break down.

In 2017, the United Nations Committee on the Elimination of Discrimination against Women expressed concern regarding the limited data pertaining to spousal maintenance in Ireland. What little data we have indicates very low rates of spousal maintenance awarded and high levels of inconsistency in how it is calculated. This may maintain gender-based economic inequalities between men and women in Ireland.

What's happening with reform?

In 2022 the Department of Justice launched the Family Justice Strategy 2022-2025, with the intention of creating a modern family justice system. In their 2022 report, the Family Justice Oversight Group underscored the information gap in the current system, and the need for research and data collection to facilitate reform.

However, existing reform proposals focus solely on reforming the family justice system, as does the Family Courts Bill 2022. At this time, no reform has been mooted in respect of the substantive law on divorce.

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The views expressed here are those of the author and do not represent or reflect the views of RTÉ