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.

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

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;

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