The latest figures for divorce reported yesterday show a steady, but not startling, increase during the three years in which divorce has been available in this State. Did this slow start to the new law indicate a lower level of marriage breakdown than pro-divorce campaigners claimed in 1995? (Statistics at that time suggested there were 80,000 people in the State whose marriages had broken down.) Or did it prove groundless the fears of the anti-divorce campaigners that the availability of divorce would undermine marriage?
It is likely that neither explains the relative reluctance of people whose marriages have broken down to seek a decree of divorce. (More than 8,000 people have sought divorces since they became available on February 27th, 1997, of whom 3,240 made applications in 1999, compared with 2,761 in the legal year ending July 1998.) Instead, it may indicate a wariness people have of the new legislation, and their fears that it may disrupt existing arrangements which they have found acceptable.
There is anecdotal evidence that these fears could be well-founded. While, because of the in camera restrictions on family law reporting, any speculation about what happens in divorce cases can only be that - speculation - it is true that the divorce legislation allows for a whole new settlement to be decided by the court in a contested divorce.
This is because of the terms of the legislation itself, carried over from the amendment to the Constitution for which the electorate, by the narrowest of majorities, voted. Among other requirements, the law states: "The court must ensure that proper provision has been made or will be made for spouses and children and any other person prescribed by law."
When the whole issue of divorce was being debated there was broad consensus on the question of proper provision for the "first family", including both spouse and children. No one suggested that they should not be provided for as adequately as possible. But there was little discussion of the fact that divorce was being introduced into a situation where legal provision for marriage breakdown had existed for a number of years, in the form of the Judicial Separation and Family Law Reform Act of 1989, and preceding legislation.
This Act in particular provided for everything involved in a divorce - what became of the family home, division of assets, provision for the separating spouses, custody of and access to children - except the right to remarry. No one asked what would happen to separation agreements, or court judgments, under this legislation when a divorce was sought.
Barrister Stephanie Coggins and solicitor Nuala Jackson are the authors of a text book on the new Divorce Act, the Family Law (Divorce) Act 1996. They point out that there is likely to be existing provision for dependent spouses and children arising out of a deed of separation or other matrimonial proceedings.
"However, such previous arrangements may be re-opened and their propriety reassessed by the court in the divorce proceedings," they write. "The standard of `proper provision' is subjective, dependent upon the circumstances of the individual litigant."
THE circumstances of one or other of the spouses may have changed since any legal separation was finalised. For example, the wife might have become ill, and need greater financial support. Or the husband may have become unemployed.
On the other hand, one or other of them might have prospered in their career or business, or even have won the Lotto. Could they then not make better provision for their former spouse? Or one of them may now have another relationship and perhaps children, who, according to the legislation, need to be provided for, which might affect the capacity of the man to provide for his first family.
The circumstances in which people might seek changes to existing separation agreements are endless. What they all have in common is the capacity to reintroduce conflict and rancour into a relationship which had, as it does in the case of many separations, settled into distant amicableness.
"We do need a bit of judicial guidance here," says Muriel Walls, a specialist in family law with Dublin solicitors McCann Fitzgerald. "We need to know whether, if there is a separation agreement, it will be broadly maintained unless there are exceptional circumstances."
The latest figures also show that the number of people seeking judicial separation remains constant: 1,566 in 1999 compared with 1,581 in the legal year ending July 1998. Family lawyers say that separation agreements are now being designed with a view to the settlement being maintained if a divorce is sought after the mandatory four-year wait.
Unfortunately, people currently venturing into a contested divorce do not know what to expect. The law has only been in operation for three years. Because of the in camera rule, divorce cases are not reported in the newspapers, even in the most general terms and without identifying the parties. So, in general, neither legal practitioners nor the public know the extent to which existing arrangements under separation agreements are continued and the instances where they are changed.
Nor do they know what is said about other important issues, like custody of and access to children. In this situation, anecdote and claims of both extravagant awards and victimisation abound. The only circumstances in which the results reach the public domain are when exceptional cases go to the High Court; written judgments are normally given and then published in law reports without identifying the parties.
While the question of the application of the in camera rule raises difficult issues of the confidentiality of families involved in litigation, lawyers like Ms Walls see the argument for some change. "It would make our job much easier," she adds. "And it would dismantle some of the urban myths about what happens in the divorce courts."
