International Journal of Law, Policy and the Family 16, (2002), 202222

D I V OR C E I N IR E L A N D : T H E F E AR , T H E F L O O D G A T E S A N D T H E R E A L I TY
J EN N Y B U R L E Y A N D F R A N C I S R EG A N *

ABSTRACT

The Irish story of family law reform in the post-Second World War era is quite different from the experience of other countries. One of the main reasons why the story is different is that from 1937 divorce was banned under the Irish Constitution. Divorce law reform therefore required a referendum to change the constitution. Even though there were thousands of separated people in Ireland in the early 1980s, the proposal to introduce divorce was vociferously opposed in referenda in 1986 and 1995. The opposition to constitutional change was fuelled by anti-divorce campaigns which used fear tactics related to money, children, property and inheritance to argue that divorce would tear apart the fabric of Irish society. The campaigns also claimed that divorce would open the oodgates to marriage breakdown. The availability of divorce in Ireland since 1997 has not, however, borne out the dire predictions of the anti-divorce campaigners. This article briey outlines the historical background to the introduction of divorce in Ireland and examines the consequences of the reform. It demonstrates that the divorce and family breakdown oodgates have not been opened and argues that a complex range of factors must be taken into account in order to explain why, at least in the rst ve years, relatively few Irish people applied for divorce.

1.

I N TR O D U C T I O N

In February 1997, more than 20 years after most other western countries, Ireland nally legalized divorce. This very late introduction of divorce legislation had a lot to do with the Irish constitutional ban on divorce which could only be removed by a referendum. In Ireland, therefore, the story of family law reform is quite different from that of other countries where divorce law was often more of a question of introducing legislation. Indeed, Jacob has called the liberalizing of divorce laws in the USA in the 1970s the silent revolution because there was little public debate surrounding the reforms before they were enacted.1 There was no such silence in Ireland. On the contrary, in two referenda the proposed constitutional change was ercely contested
*Department of Legal Studies, Flinders University, GPO Box 2100, Adelaide 5001, South Australia. Oxford University Press 2002

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in all sections of the media, in advertising, public meetings, church homilies and in the parliament. The absence of divorce in Ireland did not mean, however, that marriages did not break down. Marriages did fail and separated people formed second relationships and had second families as they do elsewhere.2 Nevertheless, despite the evidence suggesting a need for reform, the proposal to introduce divorce was vociferously opposed by more than two-thirds of the population in the 1986 referendum and by almost half in 1995. The opposition to constitutional change was fuelled by anti-divorce campaigns which used fear tactics to underpin their claim that the introduction of divorce would tear apart the fabric of Irish society. Divorce posed, in these cleverly devised campaigns, a threat to the Irish lifestyle and, more importantly, the Irish identity. Like all campaigns based on fear, there was some truth in the antidivorce claims. It was a relatively easy task to point to the research in other western countries which documented the often negative consequences of divorce, for women and children particularly, and draw narrow or even distorted conclusions. Selective use of this research in anti-divorce campaigns established the destructive nature of divorce and it was a short step from there to proclaim that divorce would open the oodgates to the family misery from which the Irish were protected by their Constitution. The campaigns further warned that there would be no shutting of these oodgates once divorce was allowed. History has, however, proved the doomsayers wrong. The evidence demonstrates that since divorce was introduced in Ireland in 1997 the dire predictions of the anti-divorce campaigners have not been borne out in reality. This article outlines the more recent historical background to the introduction of divorce in Ireland and examines the reasons why the fear campaign was so nearly successful in 1995. It demonstrates that the divorce and family breakdown oodgates have not been opened and argues that there is a complex range of factors which have contributed to the low numbers of Irish people seeking a divorce. 2.
B A C K G R O U N D T O TH E S T U D Y

This study of Irish family law is part of a larger project which examines the politics of family law reform in the 1990s. This research attempts to understand the recent consequences of divorce reforms in a number of countries. The no-fault reforms in common law countries such as the USA during the 1960s and 1970s has been referred to by Jacob as the silent revolution because the reforms did not come about as the result of political mobilisation by interest groups.3 Instead they were more a result of pragmatic decisions by lawyers, judges and bureaucrats working in family law who regarded fault-based divorce as unwieldy

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in its complexity, inconsistent in its applications and often unjust in its outcomes. In Australia, too, the impetus for reform came not from widespread political agitation but was more an internal process driven by lawyers and the Commonwealth Attorney General at the time.4 Divorce law reform was also remarkably silent in the European civil code societies including Scandinavia and the Netherlands.5 The one country exception to this rule is Ireland where the public conict was such that two referenda were needed before divorce became legal in 1997. In order to understand why it was the exception, it was decided to conduct a number of different types of interview with Irish people. The rst group of interviews conducted in 1996 gathered impressionistic data from ordinary citizens on the west coast of Ireland about why people voted against the 1995 referendum to remove the constitutional ban on divorce. These counties had overwhelmingly voted No in the two referenda. The authors were particularly interested in why women voted No because in most western societies women more often initiate divorce than men. Interviews were therefore conducted with 14 women who came from a variety of backgrounds. Three men were also interviewed. The second group of interviews were conducted in 1999 and designed to collect data from many of the interest groups who were either implementing, or were affected by, the 1997 reform. The aim of these interviews was to identify the consequences of the reform and particularly to assess the reform against the predictions and warnings of the antidivorce campaigners. A total of 33 interviews were conducted with lawyers, judges, government ofcials, legal aid executives and personnel in government and non-government organisations. The third group of interviews, which were conducted in 2001, were designed to reassess whether in fact the dire predictions about divorce oodgates had been vindicated. A total of six follow-up interviews were carried out with lawyers, legal aid and mediation executives, all but one of whom were interviewed in 1999. 3.
B R I E F H I S T OR I C A L BA C K G R O UN D

It is not always understood that divorce was not always illegal in Ireland. The ban was introduced in 1937 in a new Constitution inspired by Eamon de Valera, the President of Ireland at the time. A staunch Catholic and Nationalist, he was determined to separate Republican Ireland from its English colonial past with the creation of a Catholic state for a Catholic people.6 Despite opposition from minority religious groups and a number of prominent women, the new Constitution gave a special place to the moral leadership of the Catholic Church in the Irish state. In compliance with Church teaching it also banned abortion

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and divorce. The Churchs inuence is reected in Article 41 which dened the family as based in marriage and womens role within the family as conned to their domestic duties as wives and mothers.8 Women were thus stripped of their previously strong representation in public life. It was not until legislation from the late 1950s onwards that some of their legal rights to property, guardianship of children and succession were restored.9 Despite the ban on divorce, it was clear by the early 1980s that thousands of couples were separating and many were forming de facto relationships with new partners.10 However, because of the ban on divorce there was no coherent body of family law to deal with the consequences of marriage breakdown. In addition, the children of second families were considered to be illegitimate because the Irish Constitution recognized only families that were based on legally dened marriage.11 In 1985 the government responded to the changing family forms when it established a Joint Parliamentary Committee to investigate the extent of marital breakdown in Irish society. As a result of its ndings that many thousands of couples were separated, the Committee recommended that a referendum be held to remove the ban on divorce.12 The government adopted the recommendation even though the main opposition party did not agree with the proposal. However, early public opinion polls suggested that a referendum to allow divorce would succeed and one was duly called for June 1986. Despite the early public support, a bitter and divisive campaign followed and the referendum was comprehensively defeated.13 Following the defeat of the referendum, a raft of family law legislation was passed before a second attempt was made to change the Constitution in 1995. The most important reform in this intervening period was the Judicial Separation and Family Law Reform Act 1989 which contained fault and no-fault grounds for legal separation. Importantly, the no-fault grounds allowed couples to separate after 12 months and nalize the ancillary matters to do with custody, maintenance and property at the same time. In many respects the provisions of this Act were very similar to divorce law in other countries except that it did not allow remarriage. It was, in other words, a limited form of back-door divorce. However, the process was not without its weaknesses. For example, it involved long delays for many applicants. It was also an expensive process that required applicants to spend a large amount of money on lawyers fees. The costs therefore excluded the majority of middle-class couples who could not afford the legal fees. While legal aid was in theory available for those on modest incomes, prior to 1994 waiting lists for a rst interview were up to 14 months in many parts of Ireland.14 In addition, while law centres existed in 11 major metropolitan centres, most rural areas were left without any legal aid ser-

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Table 1. Judicial Separation Year 1989 1990 1991 1992 1993 1994 1995 1996 Adapted from Legal Aid Board, Annual Report 1997, p 7. Legal Aid Certicate 178 275 416 503 760 881 1199 1252

vices. Nevertheless, as Table 1 demonstrates, after 1989 increasing numbers of people took advantage of the new judicial separation laws each year and were funded by the Legal Aid Board to do so. The legislation put in place after 1986, including the Judicial Separation and Family Law Reform Act 1989, was therefore important for a number of reasons.15 First, it provided much needed protection for post-separation women and children where previously none had existed Perhaps just as importantly, however, it also demonstrated that legal solutions to the problem of family breakdown were possible and that their existence did not destroy Irish society. In this way, therefore, the reforms also helped to pave the way for a Yes vote in the second referendum which was held in 1995. 4.
P R O P O S E D C H A N G E S TO T H E C O N S T I T U TI O N

Intent on reversing the humiliating defeat of 1986, the Government prepared for a second referendum to remove the constitutional ban on divorce by producing a White Paper on marital breakdown in 1992.16 It estimated that the number of separated couples had doubled since 1986 and that the number of deserted wives in receipt of social welfare had trebled in the previous decade.17 In light of this background the White Paper proposed ve options to amend Article 41.3.2 of the Constitution which stated that no law shall be enacted providing for the grant of a dissolution of marriage. The White Paper also included a draft and detailed explanation of the proposed Family Law Bill to be introduced if the ban on divorce was removed.18 The ve options for amending the constitution were, rst, to give the Oireachtas (Parliament) the overall power to legislate for divorce. By contrast the other four approaches all involved incorporating a proposed ground for divorce in the constitution. These grounds were:
1. 2. 3. requiring proof of the absence of a normal marital relationship for ve years, separation for ve years, judicial separation plus a period of two years, and

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4.

irretrievable breakdown on proof of specied fault and no-fault grounds.19

While offering these ve options, the Government also made it clear that its own preference was for the Oireachtas to be granted the power to decide the details of all family law reforms. The White Paper stated that this approach was preferred because:
A Constitution is more properly concerned with statements of fundamental principles and that the enshrinement in it of the level of detail generally contained in legislation itself could be regarded as inappropriate.20

The government was not alone in arguing that the reforms should be in legislation rather than the Constitution. In the main, the legal professions were also in favour of the legislative approach because otherwise it would necessitate a referendum each time there was need for reform.21 However, to achieve all-party support for the amendment, the Government was nally obliged to not only include the grounds for divorce in the Constitution but also to make these grounds extremely restrictive. The Government also hoped that fear in the electorate that divorce might be too easily available would be moderated by such constitutional restrictions.22 Subsequently, when the Government announced in 1994 that it would proceed to a referendum the proposed amendment to the Constitution was as follows:
A court designated by law may grant a dissolution of marriage where, but only where, it is satised that: (i) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous ve years; (ii) there is no reasonable prospect of a reconciliation between the spouses; (iii) such provision as the court considers proper having regard to circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and (iv) any further conditions prescribed by law are complied with.23

When the Minister announced the terms and date for the referendum in May 1995, he stated his hope that, unlike the divisiveness created in 1986, this referendum would be characterised by balance, maturity, calmness and, above all, by realism.24 As is explained, his hope was in vain. 5.
THE 1995 FEAR CAMPAIGN

Highly organized and effective fear campaigns were again mounted by anti-divorce campaign groups in the lead-up to the 1995 referendum. The concerns relating to the consequences of divorce including money, children, property, inheritance and the Irish way of life were again a

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feature of the anti-divorce campaign, despite the passage of the legislation already mentioned. Some of the campaigns were driven by well prepared and well funded ultra-conservative Catholic groups including the Knights of Columbanus and Opus Dei.25 However, there was also a genuine fear in the electorate that if Ireland allowed divorce, it would go down the path of other western countries the US in particular and lose its unique constitutional identity as a Catholic state for a Catholic people. Coulter explains this fear as a general unease at the direction in which Western society was going, and uncertainty as to whether Irish society should follow it.26 OToole also commented that the divorce debate:
Suggests that it [fear for the future of Irish society] has even wider dimensions. Fear of social breakdown; fear of losing everything that makes Ireland in any way different from other western societies; fear, above all, that the relationships between people will dissolve if they are not enforced by law these were the raw nerves that the anti-divorce campaign managed to touch.27

The fear and unease were particularly strong when it came to preserving the Irish attachment to family forms and values. Coulter maintains that this attachment to family united both sides of the debate, even though Irish society and the nature of the family within it had been changing rapidly since the 1960s and dramatically so since 1986.28 These societal changes were particularly noticeable in relation to the steadily declining inuence of the Catholic Church in articulating Irish family values. Strict adherence to Catholic teaching had been diminishing since the 1970s according to James.29 However, it waned further in the wake of a number of sex-related scandals involving the clergy in the 1990s.30 The drift away from Church teaching can be measured in a number of areas. For example, it was clear from the reduced birthrate in the 1990s that contraception was widely used to limit family size.31 At the same time, the evidence demonstrated that the previous ban on pre or postmarital sexual activity had collapsed non-marital births had increased from 3 per cent of all births in the mid-1960s to 19.5 per cent in 1993.32 In addition, high prole Supreme and High Court cases had challenged the ban on abortion in the late 1980s despite a 1983 referendum which had further entrenched the Constitutional ban on abortion.33 Then in 1992, the law was invoked and upheld to prevent a 14-year-old victim of sexual assault travelling to England for an abortion.34 Such was the local and international uproar over this decision, however, that the Supreme Court reversed its previous decision which had forbidden such travel as being unconstitutional.35 These cases along with published estimates of the increasing number of Irish women seeking abortion in England, publicly contradicted both Catholic teaching and the constitutional ban.36

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The growing numbers of people involved in marriage breakdown, the gures for which had been recorded in every census since 1979, suggested a similar disregard for the Churchs teachings. Coulter also points to the less noted outing of Catholic teaching in other areas. She comments that:
Personal enrichment is widely seen as a more important goal than social responsibility; tax evasion and fraud are not uncommon; and more obvious crimes, like robbery, murder, and drug abuse, have increased, though not to the extent often suggested by the more hysterical media commentators.37

Perhaps the biggest change that had taken place in the family, however, was in relation to the role of women. Although low by European standards, womens, particularly married womens, participation in the workforce had increased sharply from 16.5 per cent in 1981 to 30.9 per cent in 1993. In itself this rate is unsurprising given the inuence of the feminist movement since the 1970s and the various equality measures which had been won since Irelands membership of the EU. However, the composition of women in the paid labour force had also changed dramatically. Mothers of young children made up 36.8 per cent of all married women in paid work in 1993. Furthermore, between 1961 and 1993 the number of women in the workforce in the age range of 2534 years increased by more than 800 per cent.38 Another important change in womens role in the family was revealed in a 1995 study of marital breakdown in Ireland. In this study the economic independence of women was linked, as it is in other western countries, to the initiation by women of legal action to resolve their marital difculties.39 In other words, Irish women who were economically independent were able, like their western sisters, to end unsatisfactory marriages and seek legal remedies for both separation and ancillary matters. There had been so little legal protection for Irish women in the past that most had been forced to remain dependant on husbands whether they liked it or not. However Irish society was, in 1995, no longer isolated from the familial and social trends in other western countries and this contributed to the general unease about Irelands future identied earlier in this paper. Nevertheless, the anti-divorce campaigns emphasis on so-called traditional notions of the Irish family attracted widespread support, even though it was at odds with any past or present reality. For example, as Coulter notes:
In the 1940s and 50s, looked to nostalgically by those who promote this [traditional] view, large numbers of people did not marry at all, and Ireland had one of the lowest, and latest, marriage rates in Europe, and therefore a very low rate of family formation. . . . widowhood often brought destitution . . . children were placed in orphanages . . . emigration often divided families . . . [and] the family was then, to a great extent, a single-parent family, with all the responsibility resting on the mother.40

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Other contradictions also abounded in the anti-divorce campaigns. Married men, for example, were portrayed as faithful providers of families as well as weak and ckle in the face of temptation to leave their older wives for younger women. Women, too, were either faithful wives and mothers devoted only to the welfare of their families or predators of happily married men. This latter dichotomy revealed, for Coulter, the wellsprings of misogyny lying deep in Irish society.41 It was also suggested by the No Divorce campaigners that wives who wished to escape from domestic violence should not do so because they were thereby inicting mens violent behaviour on a second wife!42 The anti-divorce campaign also relied on describing distorted scenarios of a future, divorce-ridden Ireland. According to this vision, men were calculating and feckless in their drive to avoid maintenance for their rst families, the taxpayer was going to foot the bill if divorce was allowed and older women who had devoted themselves to their families would be abandoned. Once again, Coulter reports that although older women who had never worked outside the home were a high, although declining, proportion of women in Ireland (60 per cent), this argument generated a great deal of fear in this older group of the population.43 In all fairness, older women were also justied to be concerned that their interests would not be protected by the state if divorce was introduced. Although the Constitution specically values the role of women in the family especially as stay-at-home wives and mothers there had previously been precious little state support in the form of social security for women victims of violence within the family, or for those who were deserted by their husbands. Even as the government in 1995 was promoting the change to the Constitution by saying that they wanted to minimize the trauma of marital breakdown, women and workers in the eld knew that services for those women already involved in such breakdowns were woefully inadequate.44 One result of the fear campaigns was that it created a loose rural/ urban divide in favour of divorce. The decline of the family farm since Ireland had joined the EU in 1973 and the concentration of power, wealth and culture in Dublin, was often viewed with suspicion by rural dwellers. According to James:
Although the liberal and upscale suburbs of Dublin were united in their support for the [divorce] measure, such concentrated support was not to be found in rural Ireland, where voters were not particularly enamoured of the liberal causes of sophisticated Dublin.45

These attitudes were borne out in the interviews conducted for this research with women on the west coast of Ireland in 1996. Those who had voted No in the referendum were generally contemptuous of east coast yuppies who, they thought, were more interested in money than values. It was also suggested by other women, with some bitterness,

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that the vote would be reversed if the referendum was held again.46 They suggested that people had been too apathetic to vote and that those who had not voted had mistakenly thought it was a foregone conclusion that the No vote would prevail as it had in 1986.47 However, in the end result the voting patterns in the second referendum were more complex than a simple rural/urban split. The interviews conducted for this research in 1996 suggested that several factors had inuenced the way the Irish voted. Probably the most important factor for those who voted Yes was their sympathy for friends or relatives who were in unhappy marriages or who had separated and were living in second relationships. The young single people interviewed, for example, were in favour of change because they had seen the effects of unhappy marriages on their friends or relatives. Paradoxically, however, they also reported that their young married friends voted No because they believed their own marriages were not at risk of failure. Older women, by contrast, were often more conservative but this was less from attachment to a Catholic ethos and more from resentment that men could get away with leaving their families. Legislating for divorce was seen, therefore, as just another ploy by men to escape their spousal and family responsibilities. They did not perceive it as also liberating women from unhappy marriages because, in their view, marriage was for better or for worse as well as for life. What was clear from this limited number of interviews was that the ofcial Church position against divorce had very little inuence on the way these people voted. One reason was that the credibility of bishops, clergy, brothers and nuns alike had been seriously undermined by the revelations of child abuse, paedophilia and the long-term clerical relationships which had borne children. A number of interviewees talked about how their faith had been rocked by the hypocrisy of the Church authorities who had covered up these behaviours for 40 years. This alienation from the Church was conrmed throughout Ireland in the ndings of one poll which found that even amongst those voting No, only seven per cent cited the Churchs teaching as the basis of their opposition.48 A further fear was that allowing divorce would open the oodgates to widespread marriage breakdown which, in turn, would have a number of destructive consequences. For example, the Irish people interviewed in 1996 were concerned that if people could get divorced they would not work at overcoming the difculties which all marriages experience. In other words, it was only when marriage was understood to be life long, as it is in Catholic teaching, that couples would work to preserve their relationship. Many people thought that to allow divorce was to give couples too easy a way out. Such an abandonment of Catholic values would therefore open the oodgates to the secularization of

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Irish society which had begun with its membership of the EU and lead to a subsequent drowning of its identity in western culture. The need for the indissolubility of marriage to remain as part of Irish culture was also strongly connected to fear for the welfare of children of divorced parents. A common response from Irish women in 1996 in particular, regardless of whether they voted Yes or No in the referendum, was the question What will happen to the children?. Anti-divorce campaigns were not slow to pick up on this fear for childrens welfare in advertising which stressed themes of families broken by divorce and of children of rst marriages missing out on their inheritance. Perhaps the clearest illustration of the fear campaign was the infamous antidivorce billboard in the last days of the campaign in 1995 which announced Hello Divorce, Bye-bye Daddy. The unscrupulous use of such fears about the welfare of children denied the reality that many Irish fathers had been abandoning their children for decades and that the state had done little to support those families. Income support for sole parents is, of course, very expensive for the state in modern societies and one man interviewed in 1996 understood this only too well. His vote against divorce in the referendum was connected to an unambiguous concern for the economic consequences of divorce in terms of the cost to the state of support for sole parents, the vast majority of whom were women. In his opinion, Ireland was only beginning to emerge from prolonged underdevelopment and the economic prosperity of the 1990s would be jeopardized if the state had to pay for the women and children who would become dependent on welfare benets if divorce was allowed.49 Fears for Irelands future thus gured prominently in the campaign leading up to the 1995 referendum to remove the constitutional ban on divorce. The power of the anti-divorce campaign can be seen in the polls which sought to measure the strength of support for constitutional change. In May 1995 when the date of the referendum was announced, 69 per cent of the electorate supported divorce but by the time of the poll in November, this support had shrunk to 49 per cent.50 In the event, despite the collapse in support, the referendum to allow divorce was won by the narrowest of margins (0.6 per cent). However, the anti-divorce campaigners had not yet given up their cause. As soon as the result was known there was an immediate High Court challenge to its validity on the grounds that there had been material interference with the conduct of the referendum.51 Although the challenge was rejected by the three judges of the High Court, the case was taken on appeal to the Supreme Court where the ve judges there also rejected it. These cases delayed the passing of legislation and it was not until 15 months after the referendum, on 27 February 1997, that the Family Law (Divorce) Act 1996 came into operation.52

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6.

A P P L Y I N G F O R A DI V OR C E I N I R E L A N D

While the new Act allows divorce, the conditions under which it can be granted are, in some important respects, very different to those in many other societies. For example, in Ireland divorce is possible only after an unusually long period of separation. That is, the spouses must have lived apart for at least four of the ve years before proceedings began. In other societies the qualifying period is usually no more than two years. The other conditions that must be fullled are more typical of other societies.
There is no reasonable prospect of the couple getting back together. Both spouses and any dependent children have been (or will be) properly provided for. Either spouse was domiciled in the Irish State when proceedings began or lived in the State for at least a year before that date.

In addition and in contrast to many other societies, all divorce cases are heard in camera therefore removing any possibility of public scrutiny of this new area of law. This secrecy is of particular concern in view of the fact that judges have wide discretionary powers to make ancillary orders for safety and protection, preservation of the family home, property division, spousal and child maintenance as well as for the general welfare, custody of, and access to, children. At the same time, when solicitors are consulted about divorce applications they have a range of mandatory responsibilities to full. First, they are obliged to discuss the possibility of reconciliation and provide applicants with a list of people qualied to help them resolve their problems. Second, solicitors must discuss the possibility of mediation and give clients a list of qualied mediators to help them agree the terms of separation or divorce. Third, they must also discuss the alternative possibilities of judicial separation or a written separation agreement. Finally, solicitors for both parties must certify that they have given their clients the above information before the case can be heard in court.53 Perhaps the most remarkable feature of the Irish Act, however, is that, unlike divorce law in other western countries, there is a no clean break principle in the divorce legislation. This means that if there are material changes in the ex-spouses circumstances they can seek variations to orders relating to property, maintenance, periodic or lump sum payments, nancial compensation and pension adjustment at any time after the divorce.54 That is to say, there is no legislative impediment to ongoing court adjustment of nancial and other payments; indeed, there is positive support for ongoing adjustments in the legislation.

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Table 2. Legal Aid Grants Year 1996 1997 1998 1999 2000 Divorce na 938 1316 1307 1219 Judicial Separation 1252 1211 1019 1043 990

Source: Legal Aid Board, Annual Report 1999.

While divorce was therefore nally legal in Ireland, as explained in the following section, the consequences of the reform were not what either the pro- or anti-divorce campaigners wanted. A. The Floodgates When divorce was nally introduced in 1997 there was a general expectation that the courts would be ooded with applications from couples wanting to get out of their marriages.55 The reality, however, was quite different. According to a report in the Irish Times in November 1996, more than 60,000 people appeared to qualify for divorce because they had already been separated for more than four years.56 However, when the Act came into force in February 1997, Legal Aid, a key provider of legal assistance, had only 1,000 people on the waiting list seeking divorce. During 1997 a further 1,146 applications were received for assistance.57 In addition, legal advice on divorce was given by Legal Aid to 1,863 persons during 1997 compared to 584 in 1996. This relatively low number of people seeking advice only contradicts the argument of a oodgate. Although this is an increase of over 300 per cent, it does not appear to have translated into grants for aid which in the following year showed less than a 34 per cent increase. Part of the reason for the relatively small number of people seeking assistance for divorce was that judicial or legal separation remained more popular. During 1997 Legal Aid granted assistance for 938 divorce cases but 1,249 for judicial separation cases.58 In 1999, according to Coulter, the applications to Legal Aid for divorce and judicial separation were about half of all applications to the courts.59 In other words, although the number of legal aid applications for divorce increased in 1998 and 1999 they decreased in 2000, as can be seen in Table 2. It is clear, therefore, that the numbers of people actually applying for divorce are only a fraction of the number of people who could do so. Other data also supports the picture not of divorce oodgates opening but of an initial surge followed by a small increase. Statistics from the courts, for example, tell a roughly similar story. From a low 431 divorce applications in the rst ve months of operation,60 the number increased to 2,761 in 1998, 3,300 in 1999 and 3,346 in 2000. Meanwhile, as Table 3 demonstrates, applications for judicial separation dropped in 1997 but have since returned to earlier levels.

DI V O RC E I N I RE L A ND Table 3. Applications received by the Courts* Divorce Applications received Judicial Separation Applications received 1995 na 1449 1996 na 1740 1997 431** 1263 1998 2761 1581 1999 3316 1595

215

2000 3346 1621

* Figures to end of legal year (31 July). ** For ve months only. By December the number had reached 1500. Source: Divorce Statistics (Courts Services: Dublin, 2001).

The numbers of people seeking divorce has therefore stabilized quite quickly at about 3,300 per year. Although it may increase in the future, the fear of opened oodgates leading to uncontrollable secularization of Ireland seems to have been misplaced.61 There may be, however, a number of reasons for the relatively low numbers of applications for divorce. B. The Reality: A Trickle Not a Flood One explanation for the relatively low number of divorce applications is that couples who went their separate ways either before or after the Judicial Separation Act of 1989, have settled their affairs and now have no need to divorce. They may not want to remarry even though they may have formed a second relationship. There is, after all, a high number of de facto relationships in Ireland and there appears to be a social acceptance of these couples and their second families. This is surprising in a culture which has for so long adhered to Catholic values associated with life-long marriage. It is not so surprising, however, when the attachment to family is taken into account. On a number of occasions it was pointed out in both the 1996 and 1999 interviews that although older people may not agree with divorce in principle, they do not wish their children to be unhappy. Therefore, if marriages fail parents will not reject their children, their new spouses or partners, or their grandchildren regardless of whether they are from rst or second families. Nevertheless, despite family acceptance, co-habiting couples and their children remain largely unprotected by the law. Another factor which has probably inuenced the low rate of divorce relates to the Act itself. Like most western divorce laws the Judicial Separation Act 1989 allows a 12 month separation period as a no-fault ground prior to application to the court. However, as stated earlier, to get a divorce in Ireland the new Act stipulates that couples must have been separated for four of the past ve years before applying to the court. Most couples are reluctant to wait this long to get their affairs settled and it is easier and quicker for those wishing to separate but not remarry to get their ancillary matters settled in the shorter time frame allowed by that procedure. In addition, the new divorce Act species that the court must be satised that proper provision has been made for the spouse and any

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dependant children. So that the court can full its obligations, the legislation provides for a number of certicates to be drawn up by both spouses detailing their nancial means. These documents are not essential if there is no dispute but the court can still seek proof.62 Catherine Forde, a barrister specializing in family law suggests, however, that where a couple have long been separated and are satised with their arrangements, they may well be reluctant to have their affairs re-examined by the court in a divorce proceeding.63 It was also suggested in the 1999 interviews with members of the legal profession that some people might be in a difcult position in relation to their de facto (or cohabiting as it is called in Ireland) relationships. Previously they had an excuse not to remarry and, now that they can, may well not want to.64 Questions of redistributing property may also be unattractive to those who have accrued assets since separating which they do not want to share with their rst family.65 Failure to use the new law may also be due, in part, to some reluctance on the part of lawyers to be the rst to test the water. It was reported from a family law conference in 1999 that Dublin family lawyer David Bergen:
Blamed the inertia on the timidity of solicitors as well as their clients. Lawyers were fearful that they might be the rst to make a mistake under the new system, and so tended to urge clients to wait and see how the law developed.66

The evidence also suggests that different groups of lawyers may want different things from the new divorce provisions. Writing in the Irish Times in 1998, one year after the divorce legislation had been in force, Carol Coulter reported that solicitors see the steady stream of people seeking divorce as falling into four categories. First, if there are no complications the application process for divorce is completed quickly. Second, it is also quick when the couple already have a judicial or legal separation which is working and it is just a matter of them agreeing to some ne tuning of the agreement to conform with the divorce legislation. Third, there are those couples who are never going to agree and the process will take at least six months, but probably longer, if there are problems with discovery of documents. Finally, there are many people who seek advice about obtaining a divorce but withdraw when they discover what it entails. The problem for these individuals or couples revolves around having to provide an afdavit of means if questions of maintenance are involved. Couples separated for many years often prove unwilling to reveal this information in case ex-spouses make new claims on their nances, or want access to children they may not have taken any interest in for years. To circumvent this difculty, some couples are coming to tacit agreements not to le afdavits of means.67

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One other factor which may account for the trickle rather than the ood of divorce applications is the costs involved. As we explained earlier, the divorce procedure is costly in terms of both time and money. The new Act was subject to many political compromises in its drafting and in its passage through the Dail.68 One result is a complexity of provisions which require legal and judicial interpretation. The minimum charge by solicitors for an uncontested divorce is 1,0001,500 per individual client but it can often be more.69 Such fees may be affordable for high-middle income couples but they are expensive if seen in terms of the costs of establishing two households after separation. Furthermore, while an uncomplicated divorce usually costs about 5,000, one solicitor reported in 1999 that the skys the limit if youre in the High Court.70 While legal aid is available for low and lowmiddle income couples, waiting lists are often long and court lists even longer outside the Dublin area despite increased funds, law ofces and staff.71 For example, it was not unusual in 1999 for people to wait anything from one to 15 months for a rst appointment with a legal aid solicitor in a Law Centre.72 They may then have to wait a further two years before the matter is heard in court.73 The nal explanation for the trickle of divorce applications is that there is as yet no divorce culture in Ireland. That is to say, divorce has not yet been widely accepted by Irish couples in unhappy marriages, or in the wider community. Judicial separation is widely accepted but divorce and remarriage are not. It needs to be remembered that nearly half the population voted against allowing divorce and as a consequence there is still some social stigma attached to the divorce process. At the same time legal professionals have not yet developed a divorce culture. While some rms of solicitors have moved into an expanding market for divorce, barristers and judges are reluctant to be identied exclusively with family law matters.74 With some minor exceptions, the legal professions and the judiciary are all new to the practice of family law in relation to divorce and because of the in camera rule there is a feeling of uncertainty about the outcome of cases.75 It is likely, therefore, that it will be some years before lawyers and judges alike are comfortable with applying, administering and interpreting the new law. When that happens there will almost certainly be law reform to make the process simpler and more accessible. In the interim, however, the fear of divorce and its consequences for Irish society may well prove to be justied if they encounter all the problems of divorce which have been experienced in more secular western societies. 7.
C O N C L US I O N

Family law reform in Ireland has therefore been signicantly different from other western societies. First, the constitutional ban on divorce in

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Ireland made reforms a matter for referendum rather than change coming by way of legislation. Even so, nearly 30 years after similar reforms were commonplace in other countries and in spite of widespread marital breakdown, the Irish population remained reluctant in 1995 to change their Constitution to allow divorce. This reluctance was exploited by skilfully conducted, well funded and effective anti-divorce campaigns focussed on fear. Such was the fear of the consequences of divorce generated by these campaigns that when change was nally achieved in 1997 and divorce became possible in Ireland, it was extremely restrictive and, unlike any other country, the grounds for divorce were included in the Constitution. This precludes Ireland from revising or reforming the current Act unless the Irish people pass yet another referendum. Second, as other western law regimes move towards simpler, less costly and more administrative divorce regulation, the new Irish law is so complex that solicitors and barristers are required to negotiate and complete all divorce applications. Apart from the expense which is thought to deter many non-rich separated couples from obtaining a divorce, this has meant a considerable expansion of legal aid which is contrary to its decline in other countries. Third, the Irish divorce Act is unique in that it does not allow a clean break between the parties. It is too early in 2001 to know if this provision will cause huge problems in the future, but it is mostly unpopular in the judiciary and legal professions. At this point the provision is being cited as one of the reasons for the relatively low use of the new law. There is a disincentive for couples to divorce if they have already been separated for a number of years and there is some evidence to suggest that many separated people seek advice about divorce but do not go on to make applications because they fear they may lose assets acquired since separation. Even where second families have been formed by separated spouses there is a reluctance to disturb the status quo. The route to family law reform in most western societies is through legislation. It is usually prompted by government, legal profession or lobby group dissatisfaction with the current working of divorce regulations. Although the family law reforms in Ireland have proved to be restrictive, expensive, unwieldy and even unpopular in some respects, it will be some years before further change is sought by government or legal profession reformers. Any change in the grounds for divorce, for example, will require a referendum and few reformers, if any, are ready or willing to re-engage with what was, for them, a bruising and exhausting exercise. In the end, the anti-divorce campaigners have won a victory of sorts. While the fear they aroused in the electorate has not opened the ood-

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gates to divorce or torn apart the fabric of Irish society, it has effectively blocked off further reform in the foreseeable future.
N OT E S

H. Jacob, The Silent Revolution (Chicago: University of Chicago Press, 1988). It is true though that the marital separation rate in Ireland was always much lower than in other comparable countries. There were no ofcial statistics on the numbers of separated and divorced persons in Ireland until 1979 when in the Census of that year 7,624 people admitted to a status other than married, single or widowed. By 1981 this gure had increased to 14,117 and in 1986 it was 37,245. M. OBrien, Divorce? Facing the Issues of Marital Breakdown (Dublin: Basement Press 1995) pp 12, 21. In the mid-1980s, these gures represented six per cent of all marriages and, as such, was the lowest rate of marital breakdown in Europe. J. Beale, Women in Ireland: Voices of Change (Macmillan, 1986) p 112. 3 Jacob, op cit. 4 Starr 1996; Finlay (ed) 1969. 5 Chester (ed) 1977. 6 C. P. James, Cead Mile Failte? Ireland Welcomes Divorce: The 1995 Irish Divorce Referendum and the Family (Divorce) Act of 1996, 8 Duke Journal of Comparative and International Law 1 (Fall 1997) 178. 7 D. Keogh, Twentieth-Century Ireland: Nation and State (Dublin: Gill and Macmillan, 1994) pp 96 104. 8 C. Coulter, The Hidden Tradition: Feminism, Women and Nationalism in Ireland (Cork: Cork University Press, 1993) pp 267. 9 Y. Galligan, Women and Politics in Contemporary Ireland (London: Pinter, 1998) p 92. 10 De facto relationships are not recognized as such in Ireland. They are referred to instead as co-habitations. 11 The anachronistic illegitimate status of these children was eventually eliminated when a case was taken to the European Court in the 1980s challenging the Constitutional ban on divorce. Although the decision in the case failed to uphold a civil right to remarry under the European Convention, the court ruled that Ireland was discriminating against the children of second families in its Constitutional recognition of marriage as the only legal basis for a family. The restriction of legitimacy to the children of legally married parents thereby contravened s 12 of the European Convention on Human Rights. OBrien, op cit, n 12. This ruling by the European court eventually led the Irish government to introduce the Status of Children Act 1987 which went some way to making children equal irrespective of their parents marital status. However, the Act did not, as is often claimed, abolish the concept of illegitimacy in Ireland. P. Ward, Second Time Around: The 1995 Divorce Referendum, 13 Irish Law Times 11 (November 1995) 274. 12 Joint Committee on Marriage Breakdown, Marital Breakdown: A Review of Proposed Changes, P1 3074 (Dublin: Stationery Ofce, 1985). 13 See W. Duncan, IJLF 2 (1988) 625 for an account of the fear tactics used by anti-divorce campaigners in the 1985 referendum. 14 Working Group on a Courts Commission, Sixth Report: Conclusion, Pn 6533 (Dublin: Government Publications, 1999) 757. 15 Altogether 18 pieces of legislation were passed between 1986 and 1995. The legislation included Domicile and Recognition of Foreign Divorces Act 1986 which gave wives independent domiciles from their husbands and recognised divorces granted where either spouse was domiciled; Status of Children Act 1987 which eliminated illegitimacy for children of second families and amended the law on maintenance and succession for non-marital children; Family Law Act 1988 which abolished actions for the restitution of conjugal rights; Children Act 1989 which gave powers to health boards in relation to care of children; Judicial Separation and Family Law Reform Act 1989; Child Care Act 1991 which gave powers to health boards to care for children who were ill-treated, neglected or sexually abused; Maintenance Act 1994 which simplied procedures for recovering maintenance payments from other countries; Family Law Act 1995 which, amongst other provisions, raised the minimum age of marriage to 18, abolished petitions for jactitation of marriage and provided for ancillary orders after judicial separation or foreign divorce; Domestic Violence Act 1996 which replaced the 1981 Act and extended safety, barring and protection orders to non-spouses. K. Wood and P. OShea, Divorce in Ireland (Dublin: OBrien Press, 1997) 17880.
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Marital Breakdown: A Review and Proposed Changes (undated) P1 9104 (Dublin: Stationery Ofce). Ibid at 279. It also made many proposals for reform which were not dependent on the introduction of divorce. For a discussion of these additional proposals see P. Ward, Family and Personal Relations Law: The Path to Divorce?, Irish Law Times (February 1994) 2931. 18 Marital Breakdown, op cit at 1058 and 15585. 19 Ibid at 8995. 20 Ibid at 90. 21 Ward, Second Time Around, op cit. 22 Ibid. 23 Ibid. 24 M. Cummins and M. M. Tynan citing M. Taylor (Minister for Equality and Law Reform) Referendum to Detail Grounds for Divorce, 3 Irish Times 1 (May 1995). 25 C. Coulter, Hello Divorce, Goodbye Daddy: Women, Gender and the Divorce Debate in A. Bradley and M. G. Valiulis (eds), Gender and Sexuality in Modern Ireland (Amherst: University of Massachusetts Press, 1997) p 280. 26 Ibid at 275. 27 F. OToole, Two Cheers for the Referendum, Irish Times (25.11.95) 6. 28 Coulter in Bradley and Valiulis, op cit at 276. 29 James, op cit at 209. 30 Weekly attendance at Mass was 91 per cent in 1974 and 82 per cent in 1989. It had fallen to 64 per cent by November 1995. Ibid. 31 In 1980 the rate was 3.23; by 1993 it was below the replacement rate of 2.1 at 1.93. Vital Statistics, Fourth Quarter and Yearly Summary 1993 (Dublin: Department of Health, Central Statistics Ofce, 1994) 98. 32 G. Keily, Family Research in Ireland in I. C. McCarthy (ed), Irish Family Studies: Selected Papers (Beleld: University College Dublin, 1995) p 14. This gure had risen to 22 per cent by 1995. 33 The cases were Society for the Protection of Unborn Children Ireland Ltd (SPUC) v Grogan, [1989] IR 753 (Ir HCt) SPUC (Ireland) Ltd v Open Door Counselling [1988] IR 618 (Ir S C). 34 Attorney General v X [1992] 1 IR 1 (Ir S C). 35 James, op cit at 204. 36 Coulter in Bradley and Valiulis, op cit at 2767. 37 Ibid at 277. 38 V. Richardson, Reconciliation of Family Life and Working Life in McCarthy (ed), (1995) op cit at 1312. 39 Fahey, T. and M. Lyons, Marital Breakdown and Family Law in Ireland (Dublin: Oak Tree Press, 1995) p 52. 40 Coulter in Bradley and Valiulis, op cit at 294. 41 Ibid at 285. 42 Ibid at 289. 43 Ibid at 2878. 44 Ibid at 284. 45 James, op cit at 213. 46 The turnout of voters was 61.94 per cent. Darius Whelan, Irish Law Home Page: http:// web.rtc-tallaght.ie/staff/academic/law/irlaw.html. This compares with a turnout of 62.7per cent in 1986. Irish Times (28.6.86) 9. 47 The majority of Yes votes were recorded in the 11 constituencies of Dublin which contain half the nations population and in its surrounding counties. The remaining counties were dominated by the No vote. James, op cit at 214. 48 Ibid at 215. 49 This man also said that he had told his daughter not to vote in the referendum because if she voted Yes it would negate his vote! His wife said later that their daughter had voted and voted Yes. Although she had voted No herself, she did not appear upset by the different view held by her daughter. 50 Wood and OShea, op cit at 14. 51 Ibid at 15. 52 Ibid. 53 Ibid at 556. 54 Ibid at 63. Such changed circumstances might include the onset of illness or disability of a former spouse if they have not remarried or a dependent child; it may also include a windfall,

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unemployment or an increase in assets from, for example, a business to which a former spouse had contributed. Interview, Dunne J (Dublin, 13.6.99). 55 According to Garret Fitzgerald, the oodgates argument promoted by theological and ideological conservatives was always overworked and distorted the reality of divorce statistics in other Catholic countries such as Spain, Italy and the Catholic sector in Northern Ireland. Marriage Breakdown Raises Questions for Society, Irish Times (13.12.97). 56 Wood and OShea, op cit at 16. Other accounts put the number at 80,000; see James, op cit, n 23 at 220. 57 Legal Aid Board, Annual Report, 1997, 8. 58 Ibid at 3677. 59 C. Coulter, Legal Aid Board Resources are Strained by Divorce, Irish Times (17.12.99). 60 Court statistics are reported at the end of the legal year on 31 July. In the rst full year of operation in February 1998, there had been 1,500 applications to the courts for divorce. Carol Coulter, Money matters create divorce problems, Irish Times (21.2.98). 61 C. Coulter, Couples Cautious on Popping Divorce Question, Irish Times (27.11.00). 62 If both parties are represented in court, High Court Judge Catherine McGuinness thought it unlikely that a judge would question further the agreement that had been drawn up. Interview (13.5.99). 63 C. Coulter, 244 Applications for Divorce to End of June, Irish Times (29.8.97). 64 Interviews with Peter Ward, Barrister (16.4.99) and Eugene Davey, Family Law Solicitor (22.3.99). 65 Interview with Inge Clissman, Barrister (29.4.99) and Judge (High Court) Catherine McGuinness (13.5.99). 66 D. Truex, Postcard from Dublin, 13 Australian Family Lawyer 3 (Autumn 1999). 67 C. Coulter, Money Matters Create Divorce Problems, Irish Times (21.2.98). 68 The Dail is the lower house of the Parliament. 69 The Legal Aid Board, for example, pays its private practitioners a standard fee of about 2,2503,000 for each client in a straightforward divorce. If costs escalate beyond that amount the private practitioner must bear the cost. Interview with Frank Brady and Claire Kelly, Executives, Legal Aid Board (31.7.01). 70 All appeals from the Circuit court and contested cases where marital property in land exceeds a rateable value in excess of 200 can be heard at rst instance in the High Court or referred to it by the Circuit court. Interview, Ursula Regan, family law solicitor (30.4.99). 71 P. Cullen, Divorce Workload Means Long Delays for Legal Aid, Irish Times (21.10.98). 72 Legal Aid Board, Annual Report 1999, 7 and J. Crosbie, One-Year Waiting Lists at Six Legal Aid Centres, Irish Times (21.9.99). Waiting lists have been reduced in 2001 due to the consolidation of law centres throughout the Republic and a decrease in demand. It was the opinion of Legal Aid Board executives that the drop in demand may be due, amongst other factors, to a public perception that waiting lists are long and that it is not worth applying. For example, the waiting list in Cork came down to zero earlier this year and it was not until word got around that demand increased. Interview with Frank Brady and Claire Kelly (31.7.01). 73 A. Dunne SC cited in K. Donovan, Open Sesame for Divorce, Irish Times (18.2.97). This situation had not improved in 1999 according to an interview with family law solicitor Ursula Regan. As a result of increased funds to the judiciary and courts, waiting lists in Dublin, at least, have been reduced in 2001. 74 Interviews with Peter Ward, Barrister (2.8.01) and McGuinness J (13.5.99). 75 In February 2000 when the Act had been in force for three years, it was reported in the Irish Times that family lawyers were seeking some guidance on what judgements were being made in a variety of cases. For example, the Irish Times legal correspondent states that neither legal practitioners nor the public know the extent to which existing arrangements under separation agreements are continued and the instances where they are changed. C. Coulter, Decree Uneasy, Irish Times (29.2.00). In July 2001 the Legal Aid Board began a survey of their 90 in-house solicitors to discover what is happening in divorce cases. The results of the survey are expected by the end of the year and will provide a substantial volume of information about divorce cases which is nowhere else available. Interview with Frank Brady and Ms Claire Kelly (31.7.01).

R E F E RE N C E S

Beale, J. (1986 ) Women in Ireland: Voices of Change (Macmillan). Coulter, C. (1997) Hello Divorce, Goodbye Daddy: Women, Gender and the Divorce Debate

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in A. Bradley and M. G. Valiulis (eds), Gender and Sexuality in Modern Ireland (Amherst: University of Massachusetts Press). Coulter, C. (1993) The Hidden Tradition: Feminism, Women and Nationalism in Ireland (Cork: Cork University Press). Coulter, C. (1997) 244 applications for divorce to end of June, Irish Times, 29 August. Coulter, C. (1998) Money matters create divorce problems, Irish Times, 21 February. Coulter, C. (1999) Legal Aid Board resources are strained by divorce, Irish Times, 17 December. Coulter, C, (2000) Decree uneasy, Irish Times 29 February. Coulter, C. (2000) Couples cautious on popping divorce question, Irish Times, 27 November. Crosbie, J. (1999) One-year waiting lists at six legal aid centres, Irish Times 21 September. Cullen, P. (1998) Divorce workload means long delays for legal aid, Irish Times, 21 October. Donovan, K. (1997) Open sesame for divorce, Irish Times, 18 February. Fahey, T. and Lyons, M. (1995) Marital Breakdown and Family Law in Ireland (Dublin: Oak Tree Press). Fitzgerald, G. (1997) Marriage breakdown raises questions for society, Irish Times, 13 January. Galligan, Y. (1998) Women and Politics in Contemporary Ireland (London: Pinter). Jacob, H. (1988) The Silent Revolution (Chicago: University of Chicago Press). James, C. P. (1997) Cead Mile Failte? Ireland Welcomes Divorce: The 1995 Irish Divorce Referendum and the Family (Divorce) Act of 1996, 8 Duke Journal of Comparative and International Law 1, 175228. Joint Committee on Marriage Breakdown, (1985) Marital Breakdown: A Review of Proposed Changes, P1 3074 (Dublin: Stationery Ofce). Keily, G. (1995) Family Research in Ireland in McCarthy, I. C. (ed) Irish Family Studies: Selected Papers (Beleld: University College Dublin). Keogh, D. (1994) Twentieth-Century Ireland: Nation and State (Dublin: Gill and Macmillan). Legal Aid Board, (1999) Annual Report 1997, 1998 Dublin. OBrien, M. (1995) Divorce? Facing the Issues of Marital Breakdown (Dublin: Basement Press). OToole, F. (1995) Two Cheers for the Referendum, Irish Times, 25 November. Richardson, V. (1995) Reconciliation of Family Life and Working Life, in McCarthy, I. C. (ed) Irish Family Studies: Selected Papers (Beleld: University College Dublin). Truex, D. (1999) Postcard from Dublin, 13 Australian Family Lawyer 3, 1819. Vital Statistics, Fourth Quarter and Yearly Summary 1993 (1994) (Dublin: Department of Health, Central Statistics Ofce). Wood, K. and OShea, P. (1997) Divorce in Ireland (Dublin: OBrien Press). Working Group on a Courts Commission (1999) Sixth Report: Conclusion, Pn 6533 (Dublin: Government Publications).