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Divorce in the District Court

The proposal to allow the District Court to hear judicial separation and divorce applications should be welcomed, says Carol Coulter

The provision in the Family Courts Bill 2022 to move divorce and judicial separation cases from the Circuit to the District Court has aroused widespread opposition from the legal profession, most recently articulated by Keith Walsh SC in The Parchment.

Mr Walsh argues that this will lead to increased delays in family-law proceedings, “gridlock for judicial separation and divorce applicants, and result in a system that currently is in need of overhaul being replaced with a system that does not function”.

I think these concerns are misplaced, and the arguments against extending the jurisdiction of the District Court (following the establishment of a dedicated family-law jurisdiction at all court levels) do not stand up to scrutiny.

Mr Walsh states: “Cases involving judicial separation and divorce in the Circuit Court, when contested, rarely take less than two hours or half a day. Many cases take one day, and some other cases take two or more days to complete.”

He goes on to extrapolate from the 2022 Courts Service figures that the transfer of almost 6,000 judicial separation and divorce cases to the District Court would overwhelm the system.

When contested?

But the crucial words here are ‘when contested’. Only a minority of divorce and judicial separation cases are contested. The majority are on consent.

The Courts Service statistics do not distinguish between cases that are contested and those where the court makes orders on consent.

In 2006, I was commissioned by the Courts Service to set up and run a pilot project reporting on private family law, and did so from October of that year to the end of 2007.

As part of that project, I examined the family-law files for a single month in every Circuit Court in the State, taking this as a likely representative sample of the year.

I published the results both in the Family Law Matters magazine published by the Courts Service during the project, and in a book published in 2009 based on all the data I had collected while conducting it (Family Law in Practice: A Study of Cases in the Circuit Court, Clarus Press, Dublin 2009).

Due to the fact that, at that time, a couple had to have separated four years earlier in order to seek a divorce, the analysis showed that judicial separation was clearly used by many couples to resolve issues concerning the family home, maintenance and other financial issues, and custody of and access to children, as soon as possible after the breakdown of the marriage.

Judicial separations

Judicial separations significantly outnumbered divorces. Often, a divorce followed a prior judicial or a legal separation. In the month analysed, there were 364 judicial separations and 94 divorces – a total of 458 cases.

Only 41 – or 9% – went to a full hearing. This was twice as likely where judicial separations were involved as when people were seeking divorces, presumably because many of the contested issues had been resolved by the time the couple had met the four-year separation requirement.

Thus, 91% of all cases concluded that month were on consent at that time.

Of the 41 contested cases, 26 involved children. In 17 cases, the family home was an issue, usually combined with others.

Other financial matters, either maintenance or the disposal of other assets, featured in 20 cases.

In many cases, there was an overlap of these disparate issues.

So, potentially complex financial issues featured in less than 5% of all the cases disposed of in that snapshot.

I acknowledge that this data is now 16 years old, and a major shift has taken place, where now the majority of private family-law applications in the Circuit Court are for divorce (4,890 granted in 2022, as against 314 judicial separations), but there is no reason to think that the proportion of those consented to has significantly changed and, to my knowledge, no similar study has been published since.

Limited relevance

Thus, the argument that the District Court is ill-equipped to deal with the complex financial issues that can arise in judicial separation and divorce cases is of limited relevance to the proposed reform of the family-court system.

In any case, the proposed legislation provides for cases to be transferred to the Circuit Court from the District Court if required by their complexity.

There is no obvious reason why the potentially 90% or so of cases (or whatever the proportion may be now) where the order is granted on consent cannot be dealt with by the District Court.

In the Circuit Court, where I have attended dozens of cases, including for a separate study in 2018, I have seen consent divorces and judicial separations disposed of in as little as ten minutes.

It is also concerning to see it suggested that the District Court may lack the judicial expertise to deal with complex family-law matters.

Already, the District Court deals with family-law issues of fundamental importance – the removal of children from their parents, perhaps at birth, for up to 18 years.

It is difficult to imagine a decision of greater import, engaging, as it does, fundamental constitutional issues with potentially life-changing consequences for parents and children alike.

Welfare of children

Issues relating to the ongoing welfare of children in care are also decided by the District Court. These cases are often highly complex, involving constitutional, ECtHR and European law, and evaluating expert opinion from a range of medical, psychological, and psychiatric witnesses. In some instances, the cases can take, and have taken, many weeks.

The overworked judges of the District Court who hear these cases regularly have developed great expertise in these areas, delivering carefully considered and sometimes written judgments, and it is to be hoped that they will be allocated to the new Family District Court.

There is no reason why the Family District Court, if properly resourced, cannot deal with judicial separation and divorce cases as well as other family-law matters.

This is crucial, and if the appropriate resources are not provided, those who have warned against the transfer of jurisdiction will be proved right.

Undeniably, some cases will not be suitable for hearing in the District Court, but, as stated above, the provision exists for cases to be transferred to the Circuit Court where it is deemed necessary.

We should remember that the issue of jurisdiction for hearing divorce and judicial-separation applications is not just a matter for lawyers. It is of great importance for those citizens who will need the courts to hear and grant their applications.

Is there any good reason why citizens whose marriages have broken down, who seek to end them legally through judicial separation or divorce, who have already moved on in their lives and who have agreed on most or all of any ancillary matters outstanding, should not be able to apply to the District Court, especially as this will be at lesser cost than the Circuit Court inevitably involves?

Carol Coulter is former legal affairs editor of The Irish Times, the founder and executive director of the Child Law Project, and ran the Courts Service Pilot Family Law Reporting Project. She writes here in a personal capacity.