The Gazette 1995

GAZETTE

NOVEMBER 1995

V I E W P 0 I N T

Family Law - Not for the Poor?

for the assistance obtained from District Court Clerks, it is clear that even the barring and maintenance orders procedure would not function as relatively efficiently as it does. Our Civil Legal Aid system, in spite of recent improvements, still appears to be out of reach of many financially underprivileged citizens. Barring and maintenance orders have b e c ome the de faeto means of separation for a majority of those in marital breakdown situations who c ome to the courts. In one sense this is as well b e c a u se the various Circuit Courts around the country clearly at present cannot cope even remotely with the existing number of pending judicial separation cases. Mediation is certainly not a ma j or factor in the resolution of disputes. T he study shows that only 1 in 3 clients or private solicitors attended mediation and only I in 8 o f Legal Aid clients. Even allowing that the State- funded pilot mediation s c h eme is Dublin-based, these are disappointing figures. c o nv i n c i n g ly argue that the District Court with its present workload, c omp l eme nt o f j ud g es and facilities, would be a satisfactory locus for the final determination of all the ingredients of judicial separation cases, including issues c on c e r n i ng children and property - all of which require more time for consideration than is available in that Court. Even if mediation and other means of resolving marital disputes outside the Courts system grow and prosper, there will always be family law c a s es which will require the intervention of the Courts. It is c l e ar that the 1 9 89 Judicial Separation Act, (soon to be It is not right that the judicial separation process should in reality be a c c e s s i b le only to the property-owing and better o ff section o f the c ommu n i t y. Nobody would

replaced by the 1995 F ami ly L aw Ac t) has not by its mere passing provided a convenient forum for adjudication of marital disputes for a significant percentage of those involved in such disputes. T he L aw R e f o rm Comm i s s i on is currently preparing its Report on F ami ly Courts following in the wake o f its Consultation Paper. T he Fahey and L y o ns Study will no doubt give it significant food for thought in making its r e c omme nd a t i o ns which hopefully will be for an a c c e s s i b le system of j u s t i ce for all those unfortunate enough to be involved in marital breakdown. D E N I S C. G U E R I N New York At torney at Law Nat i ve of Killarney, Co. Kerry F o r m e r S o l i c i t or M e m b e r of t h e Law S o c i e ty SPECIALIST IN PERSONAL INJURY TRUSTS & ESTATES including: Probate of Wills Sale of Assets W e c a n r e p r e s e nt y ou a n y w h e r e in t h e U n i t e d S t a t e s Address: 25 West 39th St, Kith Floor, New York, NY 10018 W i l l i ng to act a s y o u r a g e nt in t h e U n i t e d S t a t e s

Wh a t e v er the result o f the D i v o r ce referendum may be, it is a c k n ow l e dg ed that marital breakdown is likely to continue to be a feature of Irish society in the f o r e s e e a b le future. T h e recent publication Sociological Study of Marital Breakdown and Family Law in Ireland by Tony Fahey and Maureen Lyons is therefore most we l c ome. As has been pointed out more than o n ce by the L aw R e f o rm Comm i s s i on and other interested parties, all areas o f proposed law reform in Ireland are bedevilled by the a b s e n ce o f reliable and up-to-date statistics. T he authors o f the Study have indeed drawn attention to the a b s e n ce of reliable statistics and their research has relied heavily on information supplied by solicitors practicing in the family law area. It is pleasing to find the authors so generous in their thanks to the solicitors who assisted them and it is clear that without this assistance the Study could not have moved forward. What is both interesting and disturbing about the Study is that it reveals the e x i s t e n ce of a two-tier system operating in our courts and it is difficult to describe this as anything other than one stream of j u s t i ce for the financially underprivileged and another for those better off. Although the authors are rightly cautious about the available statistics they do suggest that at least twice as many family law c a s es are dealt with at District Court level than at Circuit Court level. T he authors c o n c l ude in their study that a significant percentage of those involved in marital breakdown use the District Court to obtain barring and ma i n t e n a n ce orders only and do not proceed to seek a judicial separation order in the Circuit Court. It also appears that many of those who have recourse to the District Courts do so without legal assistance. We re it not

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