How to get rid of your spouse
Marianne Heron unravels the bewildering complexity of Irish marriage law
FAMILY LAW is in no way geared to deal with the reality of marriage breakkdown in the 26 Counties today. Tens of thousands of couples have parted irreevocably and have sought access to our inappropriate legislation to deal with the problems of broken marriage. The 50 1 a women currently receiving deserrted wife's payments, the 1386 petitions for church nullity being processed at the end of last year, and the 5000 approx cases involving breakdown handled by FLAC (Free Legal Aid Centres) beetween 1969-77 are just a few indications of the prevelance of breakdown. Yet unless a couple can agree on the terms of separation there is no appropriate legal remedy to regulate all the aspects of a legal separation, inexpensively, effectively and with human dignity.
"Basically the situation is that for most people getting a judicial separation is impossible because of the cost involvved," points out Greg O'Neill, Vice Chairman of FLAC. The proceedings for the High Court action of Divorce a Mensa et Thoro, or judicial separation, are long drawn out, complex and in the majority of breakdowns it would be unnlikely that there would be the kind of evidence required to give grounds for separation.
Denied access to a realistic solution there is "improvisation of separation", says Greg O'Neill. The means used to escape or end marriage vary from deserrtion to bringing up to half a dozen diffferent actions in different Courts to arrive at a compromise separation situaation. Each of the methods used by couples trying to find a way out has legal and social disadvantages and may even put the law to a use for which it was never intended.
The vast majority of FLAC's breakkdown cases clients improvise by using the remedies available through the Disstrict Courts. The threat of Court action for maintenance or of a barring order against a violent spouse may be used as a lever to force separation agreements, suggests Greg O'Neill. "I have no doubt that people occasionally provoke viollence in order to get evidence for a barrring order from the home."
An alternative improvisation, strictly for the well off, could involve bringing actions under the Guardianship of Innfants Act, 1964, the Matrimonial Causes Act 1870 (for judicial separation) the Married Women's Status Act 1957 (to resolve title of matrimonial home) the Family Law. Maintenance (of Spouses and Children) Act 1976 etc. etc., simply in order to have judicial ruling on variious aspects of separation.
Summing up the ineffectiveness of law on legal separation and the need for reform AIM, (the pressure group for family law reform) in their '76 Report on Legal Separation in Ireland state:
"There are simply too many separatted couples whose affairs are in a legal mess, mostly as a result of inadequate separation agreements and too much outdated legislation to deal with the complexities of marriage breakdown tooday. The whole process of legal separaation is slow and cumbersome, confusing and inadequate in scope and far too flexible as regards cost."
But for a great unknown number the law at present presents no escape from intolerably bad marriages. Trapped, they suffer behind a facade of family life. But for those who wish to separate there are the following ways around the legal impasse.
DIVORCE: A MENSA ET THORO
In reality this action is for a decree of judicial separation which does not leave a couple free to remarry. Dating back to 1870 and based on earlier ecclesiastic law, the cost complexity ˆand the absence of civil legal aid - put judicial separations beyond the reach of all but the rich and very determined. Based on the notion of matrimonial offence, "divorce" is granted on grounds of adultery or cruelty, may innvolve several days jury trial, plus the exxpense of senior counsel, barrister and solicitor.
Incidence: Between 1970-76 there were 237 High Court cases.
Cost: Can be crippling, at very least several thousand pounds.
Time: Long drawn out, it may take years before the High Court hearing takes place.
Disadvantages: The nature of the proceedings, which depend on finding one guilty party of marital misbehaaviour, are likely to put paid to any hope of reconcilliation. The Court may only grant alimony and rule on unfitness for custody and possibly exclusion from the family home, but does not deal with maintenance for children, family propperty and the home or custody and uppbringing for children.
DESERTION
Crude but effective, "divorce Irish style" is still one of the commonest ways to escape marriage. Typically it is a male working class way out, relatively few women desert their families.
Incidence: The official figure of 5010 women drawing deserted wife's payments from the State accounts only for those who have come forward to claim, or who qualify for the allowance. A recent study carried out for the ESRI estimates there are several thousand more deserted wives.
Cost: Nil to the deserter.
Time: As long as it takes to pack a bag.
Disadvantages: The State is left to foot the bill for truant husbands. The children of the family are deprived financially and emotionally and must depend on a single parent. The deserted spouse is left in a legal limbo - having neither a marriage nor yet the right to remarry - from which there is no escape. A deserting spouse may well obtain a foreign divorce and remarry and here the domicile of dependancy works as a
double edged weapon. Briefly a divorce obtained abroad by a husband will be recognised in Ireland, (although the wife may be living in Ireland and oppose the divorce) as the wife's domicile is deemmed to be that of the husband. A divorce obtained by a wife whose husband is living in Ireland will not be recognised for the same reason .
NULLITY
This High Court action dates back to 1870 and is based on earlier ecclesiastic law. But while Canon law on nullity has developed considerably, civil law has stagnated and the grounds for rendering a marriage void, based on absence of consent, non observation of formalities and lack of capacity, are extremely narrow. (Marriages are also voidable on grounds of impotence). A decree of nullity retrospectively invalidates marriage so that in law it is held not to have existed.
Incidence: Between 1970 and '76, there were 31 High Court cases.
Cost: May run to several thousand pounds.
Time: A long drawn out process which may take years to complete.
Disadvantages: Since the marriage' never existed children are retrospecctively bastardised, the mother being sole guardian. There is no obligation to suppport and all other rights connected with marriage - succession, maintenance, prooperty, matrimonial home, etc., are terrminated.
The only form of action which leaves partners free to marry, nullity does not deal with marital breakdown but only with marriages where a defect existed at the time of marriage. "The vast majority of cases - perhaps 90 per cent could not fall within the ambit of a nullity law exxcept by a highly fictional process," state FLAC in their submission on nullity.
GUARDIANSHIP
Proceedings to obtain custody of children under the Guardianship of Innfants. Act 1964 are- increasingly being used as a means of improvising separaation. The Court can rule on several cenntral issues in separation: custody, uppbringing and maintenance for children.
Incidence: In the three years 1975 to '77 there were 375 High Court Actions, although obviously not all of these reelate to custody proceedings between parents.
Cost: Considerably lower than other High Court Actions at around £400 H£600.
Time: Proceedings are much less complex than either nullity or divorce actions involving only a special summmons rather than petition and affadavit. Generally a matter of months.
Disadvantages: Children can become a marital football in a legislative field inntended to protect their interests. Guarrdianship proceedings cannot deal with other aspects of separation such as maintenance of spouses and family prooperty.
CHURCH ANNULMENT
An increasingly popular way of endding marriage on the grounds that it never validly existed due to a defect at the time of marriage. Around two thirds of all petitions for nullity are either not accepted or are dismissed in the initial stages. And in 80 per cent of the decrees granted last year there was a prohibition In remarriage for one or both of the partners involved.
Incidence: In 1976-'77, 109 decrees of nullity were granted while 1,386 petiitions were still being processed.
Cost: A fraction of the cost of a civil nullity action at something in excess of £100 with a limit of £200. No one is denied access to the Court through lack of funds, however.
Time: On average eighteen months to two years.
Disadvantages: Church annulments have no standing in civil law therefore the marriage remains valid in the eyes of the State. And any remarriage is invalid and those involved - including the offiiciating priest - are in theory liable to be charged with the criminal offence of bigamy.
In the case of second marriages by the Church families are left without the protection of the law, the children are illegitimate, they and the wife have no succession rights and there is no entitleement to maintenance and other rights such as widow's pension. These rights are retained by the first family and here the Church makes no ruling on obligaation to maintain, etc.
SEPARATION AGREEMENT
If a couple can agree to terms they can have a document drawn up to reguulate their separation without having to go to Court. Such an agreement is as binding as any other form of contract and is enforceable. It can cover all asspects of separation: agreement to live apart, maintenance, custody, property, etc.
Incidence: No national figures availlable. Nearly a third of all matrimonial cases handled by Dunlaoghaire FLAC 1972 - '77 concerned separation. Out of a total of 370 cases 67 involved separaation agreements which were executed. Around 40 cases involved agreements which were not finalised for one reason or another.
Cost: Can vary enormously, from £21) - ,£80 for drawing up a 2 page docuument. AIM report a variation in fees from £2.50 to £8 for a half hour consulltation.
Time: In theory document should be completed in months - if not weeks. But an AIM survey shows that only 40 per cent of sample took under a year.
Disadvantages: Few lawyers speciallise in family law and marty are unwilling to take on cases of this kind since matriimonial cases are financially unrewarding and time consuming.
FOREIGN DIVORCE
A solution either for the very well off, for deserting spouses or those inntending to live outside Ireland. A forreign divorce may not necessarily be reecognised here as recognition is given only where parties have common domiicile within the jurisdiction of the Court granting divorce. .
Incidence: No national figures availlable. Out of a total of 370 matrimonial cases handled since opening, DunnLaoghaire FLAC have had 18 cases where British divorce proceedings had been issued against their clients. Divorce was granted in 17 of these cases. Half of them involved deserting husbands taking proceedings, half cases where the family were living in Britain, the wife returned to Ireland and the husband sought divorce.
Cost: In Britain this would be miniimal due to free legal aid and free advice centres.
Time: In Britain divorce is granted on agreement after two years, or on the grounds of irretrievable breakdown or after five years separation without agreement.
Disadvantages: Obvious difficulties apart from the chief snag here is the creation of "limping marriages", where the couple are considered to be divorrced in one country and still validly married in another. For instance a wife obtaining a British divorce from a hussband living in Ireland would not have her divorce recognised here since her domicile is taken to be that of her hussband (Ireland where divorce is constituutionally prohibited). Thus the husband is not free to remarry in Ireland while the wife may remarry in Britain but her second marriage will be considered bigamous here. '
DISTRICT COURT ACTIONS
District Court actions are used by a large number - usually wives who cannot obtain a separation agreement or afford a judicial separation - to regulate at least some aspects of broken marriiage.
(A) Maintenance. Under the Family Law Maintenance (of Spouses and Chilldren Act 76) an individual simply has to prove failure to maintain. Court may award up to a maximum of £50 per week and £15 per child and may make an attachment order to earnings if payments are not made.
Incidence: Between 1976-'77 653 actions in Dublin City and County District Court.
Cost: Can be minimal if the legal work is done by FLAC.
Time: Up to three months. Disadvantages: Difficulty in enforcing payments from a defaulting spouse who is self-employed.
(B) Barring Order. Under the same Family Law Act a violent spouse can be barred from the family home for up to 3 months.
Incidence: 1976-'77 257 barring acttions in the Dublin City and County District Court.
Cost: Can be minimal if legal work is done by FLAC.
Time: Generally a month or two but can be brought in ten days in extreme cases.
Disadvantages: Shortness of barring period and the absence of any real deeterrent against breaking an order.
In place of unsatisfactory improvisaations FLAC would like to see the introoduction of legislation for the dissolution of marriage on the grounds of irretrievvable breakdown with a streamlining of court procedures and the introduction of civil legal aid.
To provide a back up for marriage they have also called for comprehensive pre-marriage education and a concilliaation service for marriages in difficulties. AIM Group are also pressing for the introduction of family tribunals - a form of special court to deal with family law cases - with much simplified procedures and up to date legislation.
Reform will eventually emerge but when, and in what form is uncertain. The Law Reform Commission are currently examining certain areas of family law. Nullity reform, separation based upon irretrievable breakdown, the rights of husband and wife within marriage and appropriate court struccture for family cases will all be subjects on which the Commission will put forrward proposals for reform. (While the Constitutional prohibition on divorce remains, however.: dissolution of marriiage allowing remarriage is not within the terms of reference.)
The prohibition is to be challenged shortly in the European Court of Human Rights, on the grounds it is in breach of Articles 8 and 12 of the Connvention of Human Rights which prootect the right to family life and to marry. It is argued that in the cases innvolved the two women with broken marriages are being denied these rights.
The European Rights Court has allready ruled that Ireland is in breach of the Rights Convention because the absence of civil legal aid "here denies those seeking judicial separation access to the Courts. This ruling may help to speed the action on the recommendaations of the Report of the Pringle Committee on Civil Legal Aid and Advice, published last March which addvocates free legal aid in all civil cases .•