The Gazette 1973

Free Legal Aid Advice Centres Report DIVORCE PAID FOR BY STATE IS URGED Divorce, paid for by the State—and other radical changes in matrimonial law—have been urged by lawyers and law students, who operate Free Legal Advice Centres in Dublin. calls for the introduction of a simplified and inexpen- sive separation action with legal aid available for those in need of it.

T he absence of legal aid together with the exorbitant costs involved in an action a mensa et thoro make it a "privilege" of the richer members of society and thus not available to the great majority of those who have need of it. In the light of our experiences, we believe that there must be made available an inexpensive form of separation action for which legal aid can be granted. We suggest that the ground for a judicial separation or divorce should be proof by either party that the marriage has irretrievably broken down. We do not think that the above actions should only act as remedies available to an innocent spouse for a matrimonial wrong, e.g., only available where one party commits adultery or assaults the other. We envisage the following as constituting evidence of irretrievable breakdown : 1. (a) The spouse has behaved in such a way that the the petitioner cannot reasonably be expected to live with him, or (b) the petitioner is unable to live with him due to the latter's desertion; (c) introduces an objective test, that is, is it reason- able to expect the petitioner to live with the respondent, having regard to the respondent's behaviour. This would cover the present matri- monial offencc grounds for the decree a mensa et thoro; (d) here, proof would be necessary to show that the petitioner was unable to live with the respondent due to the respondents continued desertion. 2. (a) The spouses have lived apart for a continuous period of four years and consent to divorce. When both parties agree that their marriage has irretrievably broken down, divorce by consent !s synonymous with irretrievable breakdown. (b) That the spouses have lived apart for a con- tinuous period of five years and do not consent, but there is no hope of reconciliation. T hus we recommend that if an innocent spouse were to be divorced against his/her will, there should be an absolute bar whereby the court would have a duty to refuse a decree unless it was satisfied that the proposals concerning property, pension and maintenance were equitable. Where one spouse on religious grounds does not agree to the complete divorce that the other desires, she does not have to regard herself as free to remarry after the action has taken place. At the same time, the petitioner will be free to follow the dictates of his own conscience and remarry if he wishes. 3. Where one spouse has deserted the other and obtained a divorce in a foreign jurisdiction against the latter's will, the State should permit the deserted party to obtain a decree of divorce in Ireland. 4. Where á decree of judicial separation has pre- viously been granted, in a subsequent petition for divorce, the court or tribunal should treat the previous decree as proof of the grounds on which it was granted. Finally, before any decree could be granted, the tribunal must also be satisfied that there is not hope of reconciliation and that the breakdown is, in its eyes, irretrievable. When this stage has been reached the 43

The recommendation is based on the experience of the students who have handled 650 cases concerning marriage break-up at seven centres in working-class areas. They urged that the ground for divorce or a legal separation should be evidence by either party that the marriage had irretrievably broken down. It calls for a complete divorce action with legal aid available for those in need of it and a simplified and inexpensive separation action, also with legal aid, for those who need it. The FLAC report also calls for the setting up of a Family Welfare Council, headed by a Family Welfare Commissioner concerned with family and marital prob- lems. And it says "Any legislation embodying divorce pro- visions must buttress rather than undermine the stab- ility of the institution of marriage. "While reforming legislation must permit a dead mar- riage to have a decent burial it must also insure that it is not instrumental in producing the corpse and that every practical provision is made to try to reconcile the parties." Mr. David Molony, the chairman of the FLAC council, said yesterday : "The bulk of our work has been with marital problems. We consider that divorce must be provided for and there is no point in our pretending that there is no such problem. Our work and ex- periences prove the problem exists." The FLAC report says that 26 per cent of all the cases they completed concerned marital disputes and associated problems. Views emanate from analysis of problems The changes in the law on divorce, as well as main- tenance of illegitimate children and children and the law, are contained in a paper put forward for dis- cussion by a research team. But the report emphasises that the views and recom- mendations expressed emanate from analysis of the problems encountered in the day to day running of the centres. The report is sharply critical of the physical surround- ings of the Children's Courts in Dublin and wants the age of criminal responsibility raised to 14 and two Children's Courts in the Metropolitan area nearer the larger residential areas. The centres—situated in Mountjoy Square, Moles- worth Street, Rialto, Ballyfermot, Crumlin, Ballymun and Monkstown—completed 1,383 cases up to July 31 this year. The centres are manned by law students and has about 60. solicitors involved with its own panel of solici- tors. Approximately 30 barristers also give their services free. SEPARATION LAW INEQUI TABLE The present law concerning separation is inequitable and discriminatory, according to the FLAC report. It