Irish divorce law needs to be reformed to allow for a "clean break" end to a marriage, and to reflect the needs of modern Irish society, according to a leading family law expert.
Geoffrey Shannon, head of the family law department in the Law Society and the author of a number of works on the law relating to families and children, publishes a new book later this month on divorce law after 10 years of practice.
In a foreword to the book, the former Supreme Court judge and chairwoman of the Law Reform Commission, Mrs Justice Catherine McGuinness, also stresses the impossibility of a "clean break" under the current law.
She also calls for reform of the law on nullity.
Mr Shannon points out that the first decade of Irish divorce legislation coincided with unprecedented economic growth that was largely unforeseen at the time of its enactment. At the time of the debate, many people were concerned that divorce would leave first families in poverty.
While the basis for this assumption was unclear, it "hindered the development of a debate and analysis as to how financial and property issues should be dealt with when a marriage breaks down".
While the desirability of a "clean break" underlies UK divorce law, this is not the case in Irish law, he states, and the Divorce Act "failed to acknowledge that divorce is a point of final closure of an irretrievable marriage".
Instead the Divorce Act mirrored the reliefs available under the Judicial Separation Act, introduced at a time when divorce was not contemplated.
"Divorced spouses, like separated spouses, have the right to return to the court at any point, even after the death of their former spouse, to seek adjustments to any provision made at the time of the divorce hearing," he writes.
While lawyers may seek a "clean break" on behalf of their clients, this must come with the caveat that the receiving spouse may return to court at any time to seek further provision. However, he points out that emerging case law shows an inclination among the judiciary to provide for a "clean break" as far as possible, usually by a lump sum in big money cases.
There is a need to address what ongoing obligations one spouse owes another in the context of a debate about reforming the law, he says, including a re-evaluation of the judicial separation legislation.
He is critical of the ongoing use of the law on nullity, whose use was greatly expanded in the pre-divorce era to cater for some of those whose marriages had broken down. The concept of "an inability to enter into and sustain a marriage" was stretched to include such cases, and its use now that divorce is available must be questioned, he says.
Mr Shannon also argues for provision for prenuptial agreements that are valid and enforceable to the extent that they foster the interests of children and spouses, though he stresses that the judiciary should retain a wide discretion to vary their terms.
Referring to the very wide discretion of the judiciary with regard to maintenance, he suggests that some formula be devised, along with guidelines for its use, for calculating what is appropriate maintenance payable in various circumstances.
Similarly, some principles should be devised for the division of family assets following a divorce, so that there can be greater clarity, confidence and predictability around the outcomes of family law proceedings.
Mr Shannon repeats the point made in some of his earlier work, that there should be provision for the voice of the child to be heard in family law proceedings, and urges that the Probation and Welfare Service be resourced to provide social reports on children in such proceedings.
With our accession to the EU and the growth in immigration, there are greater numbers of trans-national marriages. He urges much more awareness and training among lawyers of emerging European law on divorce across jurisdictions.
However, he stresses that alternatives to court-based solutions to family breakdown need to be much more widely used, both through mediation and through lawyer-based collaborative law.