The changing face of family law in Ireland

AuthorFrank Martin
PositionSenior Lecturer in Law, University College Cork
In addressing the current state of Irish Family Law, many
questions come to mind immediately. Is contemporary Irish Family
Law in a state of chaos and crisis? Is the traditional legal certainty of
the definition of “the family” itself under attack, thus creating a
great deal of legal uncertainty for judges and legal practitioners, as
well as other professionals who support families? A related legal
question is whether or not the “marital” family should continue to
be the most acceptable and privileged institution for those who plan
to situate their inter-personal relationship in a legal context that
offers the optimum socio-legal security for spouses and children. Is
it perhaps now timely for the judiciary (in the absence of any action
by parliament) to validate and give legal recognition to other
“family” forms, models or paradigms?
Some commentators have suggested that the advent of a no-
fault divorce was tantamount to promoting a “divorce culture,”
which would inevitably have major ramifications for Irish society at
large. A related question is whether we should revisit once again the
fundamental issue of whether there should be specifically designated
Family Courts and trained judges as was originally proposed in the
1996 Law Reform Commission Report on Family Courts. This
clarion call for radical reform in the operation of the courts which
deal with Family Law problems was reiterated morevigorously in
Justice Susan Denham’s1998 Sixth Report of the Working Group on
aCourts Commission. The LRC Report on Family Courts had
originally pointed out that: “Judges who deal with Family Law
matters in Ireland are not by law required to have any special
qualifications, training or experience in, or aptitude for, Family Law
matters.” Therehas been considerable and substantial growth of
statutoryFamily Law and, as revealed in the 2000-2004 Annual
16 [5:1Judicial Studies Institute Journal
*Senior Lecturer in Law, University College Cork.
Reports of the Courts Service,1there have also been large increases
in the number of Family Law cases coming before the courts. It has
also been recognised that an unhealthy two-tiered system of family
justice has been developing in recent times in which the lower socio-
economic groups, who are often unrepresented litigants, seek
summary justice in the District Court, while the more affluent in
Irish society seek legal remedies from the jurisdiction of the Circuit
Court. Viewed overall, it can now be stated with a degree of
certainty that the past twenty-five years have seen a striking
development and transformation of substantive Family Law.
One of the legal hallmarks of Irish Family Law jurisprudence
is that thereis a great deal of judicial discretion in many of the
Family Law statutes, which was the result of a deliberate policy
decision by the legislators. In addition, Family Law cases present
particular and special challenges which mean that a Family Law case
could, potentially, require a Court to make a wide of decisions
regarding children, maintenance, family assets and finance,
occupation of the family home, etc. In other words, in the absence of
agreement between the parties, the Court is obliged to redistribute
the assets as a means of regularising the post-breakdown
relationship situation. Family Law cases may be psychologically
complex, requiring family assessment by social workers,
psychiatrists or psychologists, particularly where there are children
involved. Cases can also be financially complex, especially in what
have come to be known as “ample resources” or “big money”
divorce cases where the assets (financial and property) may involve
millions of euro and where pension splitting may also be in question.
The legal position of “the family” has regularly been the
object of examination and analysis. Globally and nationally, the
socio-legal boundaries and parameters of Family Law are being
pushed out further and further not only from an international, or
indeed a European Union, perspective, but also as a result of
progressive domestic judicial jurisprudence which has sometimes
2005] The Changing Face of Family Law in Ireland 17

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