Recent judgments in separation and divorce cases have raised further layers of uncertainty and difficulty in an already uncertain area, according to family law expert Gerry Durcan SC.
Mr Durcan was speaking at the annual Sweet and Maxwell family law conference in Dublin at the weekend.
"It is not at all clear what effect a separation agreement will have in a future divorce," he said. "It is very difficult to predict, and depends on what judge you draw and what weight is given to a 'full and final settlement' clause."
Mr Durcan outlined the history of cases in the High and Supreme Courts involving prior separation agreements. The first of these is known as the T v T case, and he said a number of principles could be drawn from it.
These included stressing that the court was responsible for deciding what was "proper provision" (for the dependent spouse) in each case; allowing that in some "big money" cases provision could be made by the payment of a substantial lump sum; the date for assessment of the assets was the date of the trial; discrimination based on the different roles of the spouses in the marriage was not permissible; conduct is only relevant in this regard if it is "obvious and gross"; certainty and finality are desirable goals, which should be facilitated if the circumstances permit; and each case must be decided on its own circumstances.
In some recent cases different judges seemed to give different emphasis to the role of separation agreements, he said. In one such case Mr Justice Hardiman had said: "I cannot approach the question of what is 'proper' in the circumstances without giving very significant weight to the terms of the separation agreement."
In another recent case Ms Justice Finlay Geoghegan examined a "consent" to allow the terms of a judicial separation to be taken as "acknowledgement of potential proper provision at a future unknown date" in the context of a divorce.
Such a divorce might not take place for another 10 years, she said. This made it "too uncertain to be a matter which this court should take into account".
"Why in one case does the terms of a separation agreement concluded over 11 years previously carry 'very significant weight' in deciding what is proper, while in the other the terms of the acknowledgment of proper provision concluded just over four years previously constitute something 'too uncertain to be a matter which this court should take into account'?" asked Mr Durcan.
"What sense is there in the parties attempting to reach a comprehensive settlement at the judicial separation stage? Would they not be better, or indeed may they have no choice, but to leave the question of a final or at least more comprehensive settlement to the hearing of the divorce?" he asked.
Lawyers practising in the area of family law that concerns domestic abuse need an understanding of the dynamics of domestic violence as well as thorough knowledge of the law, according to Rosemary Horgan, family law solicitor.
"The style of interview that the legal adviser employs can have a significant impact on the client," she said. "It is most important that as well as outlining the legal remedies in clear terms, the victims should be referred for assistance and support."
She noted the legal problems that arise with certain orders involved in domestic violence legislation.
Already the Supreme Court identified a problem with interim barring orders, normally granted on an ex parte basis (in the absence of the person complained of) when the return date, at which the person could give their side of the story, could be months away. This led to an amendment to the Act requiring a copy of the order, along with evidence given during the hearing, to be given to the person complained against. It also limited the effect of the order to eight days.
Referring to the Supreme Court decision, she said: "Family lawyers were not surprised by this decision and it was felt that such orders were not only always constitutionally suspect, but would not survive the incorporation of the European Convention on Human Rights into Irish law."
Protection orders, which stop short of putting the respondent out of the family home, but order him or her not to use violence or, if they do not live together, not to watch or beset the home, would appear to be open to similar challenge as the interim barring orders were, she said.