Anne Eganoutlines findings of her PhD research on family law, completed last year
I OBSERVED 158 cases in all in the District and Circuit Family Courts for the purpose of my PhD. In the 50 cases observed in the Circuit Court, over half were divorce applications under the Family Law (Divorce) Act 1996.
The experience of observing these applications suggests Irish law has what could be perceived as a “revolving door” divorce system, as only a minority of cases lasted five minutes or longer in court, with the average length being three minutes.
The reason for this short hearing was that the terms had already been agreed between the parties prior to the court sitting, and attendance in court was primarily to make a consent order a rule of court.
During these shorter divorce hearings, financial matters and issues relating to custody and access had already been dealt with either at the time of a prior Deed of Separation or a Judicial Separation, or agreements had been reached prior to or on the morning of the hearing, and the cases were before the court purely to be ruled by consent.
In 11 divorce cases it was stated in court that agreement in relation to the family home had been agreed at these earlier dates. In two cases it was agreed that the wife would continue to live in the family home.
In one of them the wife had been bequeathed the property in a will, and in the other, as the couple had two properties, it was agreed that the wife’s interest in the second property be transferred to her husband. Two other family homes were to be sold and the profits divided equally between the parties.
In divorce cases where dependent children were an issue, all children continued to live with their mother, with fathers having joint custody.
The next most common applications to the Circuit Family Court were applications for judicial separation. These proceedings lasted longer than those involving divorce, with half of these observed cases lasting over five minutes. In the Circuit Family Court, three cases lasted over 90 minutes, with the common theme from these longer, more contentious cases relating to issues of property.
In five cases out of 15 in the Circuit Court, the wife remained living in the family home but in one case, she had to pay her husband a lump sum in lieu of his claim to the home. In another, the family home was to be sold with a 60 per cent share given to the wife and the remainder to her husband, while another property was to be sold and the proceeds divided in half. The judge observed that the wife’s share in the family home should enable her to purchase a home in her own right. In three cases, the husband remained living in the family home.
However, in all of these cases the husband had either inherited the land on which the house was built, or adjacent land, or had a business attached to the family home. In these three cases, the wife transferred her interest in the family home and was to be paid a lump sum. Again, where children were at issue, the children lived with their mother.
Before the District Court, the most common applications were those to make or vary maintenance orders (54 per cent). Half of the applications relating to maintenance were enforcement applications for non-compliance with maintenance orders. The average prison sentence imposed was for a period of two months, with a stay of up to one month in all but one of the cases to allow the father time to pay the arrears.
In the case where no stay was granted, a cheque previously submitted to the District Court clerk had bounced and the judge refused to allow the father any more opportunities.
Only 10 per cent of fathers actually attended the committal applications to explain to the judge why they were unable to pay the arrears. In those cases the judge adjourned the case to give them leave to pay the amount owed and suggested that the fathers apply to vary the maintenance order if they were unable to pay the amount on the original order. In some cases payments were made on the day of the court, but many still had substantial arrears.
The second most common applications to the District Court were applications to either make or vary an access order. Access was not denied by the judge to any applicant who sought it, although in 14 per cent of access cases the judge ordered supervised access where there were some concerns about the safety of children during access visits.
In such cases, the judge ordered a section 20 report under the Child Care Act 1991 from the local Health Service Executive in order to examine the child’s circumstances, and he adjourned the proceedings until such report was received.
Generally, I found there was no deliberate bias in favour of either parent, but observed that the courts considered there is a responsibility on parents to support their children both emotionally, by means of regular access visits, and financially, by means of maintenance or other financial provisions.
Dr Anne Egan was granted permission to attend the family courts for the purpose of her PhD research. She is currently employed as a university fellow in teaching and research at the School of Law, NUI Galway