The Gazette 1995

321 / 424

GAZETTE V I E W P 0 I N T NOVEMBER 1995
Family Law - Not for the Poor?
Wh a t e v er the result o f the D i v o r ce
referendum may be, it is
a c k n ow l e dg ed that marital breakdown
is likely to continue to be a feature of
Irish society in the f o r e s e e a b le future.
T h e recent publication Sociological
Study of Marital Breakdown and
Family Law in Ireland by Tony Fahey
and Maureen Lyons is therefore
most we l c ome.
As has been pointed out more than
o n ce by the L aw R e f o rm Comm i s s i on
and other interested parties, all areas
o f proposed law reform in Ireland are
bedevilled by the a b s e n ce o f reliable
and up-to-date statistics. T he authors
o f the Study have indeed drawn
attention to the a b s e n ce of reliable
statistics and their research has relied
heavily on information supplied by
solicitors practicing in the family
law area. It is pleasing to find the
authors so generous in their thanks to
the solicitors who assisted them and
it is clear that without this assistance
the Study could not have moved
forward.
What is both interesting and
disturbing about the Study is that it
reveals the e x i s t e n ce of a two-tier
system operating in our courts and it
is difficult to describe this as anything
other than one stream of j u s t i ce for the
financially underprivileged and
another for those better off. Although
the authors are rightly cautious about
the available statistics they do suggest
that at least twice as many family law
c a s es are dealt with at District Court
level than at Circuit Court level. T he
authors c o n c l ude in their study that a
significant percentage of those
involved in marital breakdown use the
District Court to obtain barring and
ma i n t e n a n ce orders only and do not
proceed to seek a judicial separation
order in the Circuit Court. It also
appears that many of those who have
recourse to the District Courts do so
without legal assistance. We re it not
for the assistance obtained from
District Court Clerks, it is clear that
even the barring and maintenance
orders procedure would not function
as relatively efficiently as it does. Our
Civil Legal Aid system, in spite of
recent improvements, still appears to
be out of reach of many financially
underprivileged citizens.
Barring and maintenance orders have
b e c ome the de faeto means of
separation for a majority of those in
marital breakdown situations who
c ome to the courts. In one sense this is
as well b e c a u se the various Circuit
Courts around the country clearly at
present cannot cope even remotely
with the existing number of pending
judicial separation cases. Mediation is
certainly not a ma j or factor in the
resolution of disputes. T he study
shows that only 1 in 3 clients or
private solicitors attended mediation
and only I in 8 o f Legal Aid clients.
Even allowing that the State-
funded pilot mediation s c h eme is
Dublin-based, these are disappointing
figures.
It is not right that the judicial
separation process should in reality be
a c c e s s i b le only to the property-owing
and better o ff section o f the
c ommu n i t y. Nobody would
c o nv i n c i n g ly argue that the District
Court with its present workload,
c omp l eme nt o f j ud g es and facilities,
would be a satisfactory locus for the
final determination of all the
ingredients of judicial separation
cases, including issues c on c e r n i ng
children and property - all of which
require more time for consideration
than is available in that Court. Even if
mediation and other means of
resolving marital disputes outside the
Courts system grow and prosper, there
will always be family law c a s es which
will require the intervention of the
Courts. It is c l e ar that the 1 9 89
Judicial Separation Act, (soon to be
replaced by the 1995 F ami ly L aw Ac t)
has not by its mere passing provided a
convenient forum for adjudication of
marital disputes for a significant
percentage of those involved in such
disputes.
T he L aw R e f o rm Comm i s s i on is
currently preparing its Report on
F ami ly Courts following in the wake
o f its Consultation Paper. T he Fahey
and L y o ns Study will no doubt give it
significant food for thought in making
its r e c omme nd a t i o ns which hopefully
will be for an a c c e s s i b le system of
j u s t i ce for all those unfortunate
enough to be involved in marital
breakdown.
D E N I S C. G U E R I N
New York At torney
at Law
Nat i ve of Killarney,
Co. Kerry
F o r m e r S o l i c i t or
M e m b e r of t h e Law S o c i e ty
W i l l i ng to act a s y o u r a g e nt
in t h e U n i t e d S t a t e s
SPECIALIST IN
PERSONAL INJURY
TRUSTS & ESTATES
including:
Probate of Wills
Sale of Assets
W e c a n r e p r e s e nt y ou
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