Until the in camera rule is reformed, getting an accurate picture of how marriage breakdown is treated in the family law courts is impossible
ANY JOURNALIST writing about family law receives reports of perceived injustices in the family law system, some of them shocking.
In recent months I have been told of one man who had to go to court 73 times in order to be able to share fully in the care for his daughter; and of a woman in her 70s facing eviction so that the house she has lived in most of her life can be sold to pay her husband his court-ordered share, now amounting to almost the total present value of the house, thus rendering her homeless.
Because of the in camera rule - whereby the media cannot report details - neither I nor any other observer was in court when these matters were decided. Neither have I been able to obtain the views of the other parties. Therefore it is not possible to have a comprehensive view of what these and many other cases involved and how and why the courts behaved as they did.
In the absence of comprehensive reform of the in camera rule a small number of academic studies of the family courts are under way or have been completed, and these throw some light on this hidden area, mainly by way of statistics. I carried out one such study of the 2006/2007 legal year for an MPhil degree.
Statistics, while extremely useful, do not tell the whole story and can even be misleading if they are incomplete or not placed in context.
For example, I found that about two-thirds of contested cases involved dependent children. However, only 9 per cent of all cases are contested, and only 37 per cent of all separations and divorces involve dependent children.
Where there were dependent children about 60 per cent ended up, either by agreement or by court order, living most of the time with their mother, either under a "joint custody" order with "primary care and control" granted to the mother, or with her having custody. The remainder was made up of fathers having sole or main custody; the care shared equally; or no order being made, which is often the case with older children.
However, when children lived mainly with their mothers it generally reflected a pre-existing reality where the mother was already the parent spending most time caring for the children.
This was hardly surprising. Recent studies from both the CSO and the ESRI have found that the majority of married women with children of primary school age or younger do not work full-time outside the home.
This was usually combined with the father paying maintenance for the children, leaving him with financial responsibility but without the comfort of his children's company on a daily basis. However, in only a small minority of cases did the father seek a radically different outcome.
It is a sad reflection on society that our working patterns are still such that most fathers of young children work long hours outside the home, though the recession may change that. Men are still generally the primary bread- winners and women the primary carers, and while this continuing division of labour may work when families are intact, is not necessarily a good starting point for dealing with broken families.
Statistics show that where the family home was at issue, it was more than twice as likely to be transferred to the wife as the husband. Here again we must be cautious with bald figures, as normally this was in return for a financial consideration. Either she bought out the husband's share of the equity, or this was transferred to her in lieu of future maintenance, or traded off against other family property.
If the wife had no income, she might have been given the right to live in the family home while the children were school-going, with the house to be sold and and the proceeds split when they grew up, but this occurred in less than three per cent of cases.
Injustices do exist, and working men on low incomes are particularly vulnerable to unfairness within the family law system. Civil legal aid, which provides legal aid in family law cases, is strictly means-tested. The cut-off point (after allowances for mortgage repayments, etc) is €18,000.
This mean that dependent women, or those who work part-time, are likely to qualify for legal aid. Their husbands, if they work for the average industrial wage of €31,000 or more, are not and may not be able to afford a private solicitor. They have no option but to seek to represent themselves, facing an experienced professional in negotiations or in court. In such circumstances it is easy to see how they may not have the tools to express their own wishes and needs within the framework of the law.
At the other end of the social spectrum women who have worked for years within the home and are married to wealthy men can be vulnerable as they are faced with an army of highly expert lawyers seeking to protect the husband's assets from the demands of "proper provision" in the family law system.
At every stage in the family law process one thing is glaringly obvious - this is not the best way to settle family law disputes. That is why the forthcoming report of the Law Reform Commission on alternative dispute resolution, with its thorough examination of mediation for family law, is eagerly awaited.
