Family fortunes
Radical overhaul of the family-law system will be the biggest change to Ireland’s courts system for over a century, but we can’t afford to wait for change to happen – we need it now, argues Keith Walsh SC
The Family Courts Act 2024 completed its passage through the Oireachtas on 7 November 2024 and was signed into law by the President on 13 November.
This marks only the end of the beginning of a long and tortuous path towards reorganising the family-justice system following the introduction of judicial separation and divorce, and which began with the publication of the Law Reform Commission’s Report on Family Courts in 1996.
The changes in the act will not come into effect until the necessary commencement orders are made.
The main changes proposed are the establishment of a specialist family-court division within the existing structures of the District, Circuit, and High Courts, with the creation of new specialist family-law districts and circuits, which will be different from the existing districts and circuits.
Although not specified in the Family Courts Act 2024, it is likely that these new districts and circuits would cover much greater geographical areas than currently, and would provide for specialist family-court centres of justice to be established around the country.
This would rationalise the entire family-courts system into a number of regional ‘hubs’, and would be one of the greatest changes in the entire court system since the Courts of Justice Act 1924 established the District Court, Circuit Court, High Court, and Supreme Court.
Doing things differently
The new family courts will sit in a different building or rooms than those in which sittings of any other court are held – or on different days and times from which sittings of any other courts are held.
There is an exception where the safety or welfare of a party to the proceedings (or a child to whom the proceedings relate) is likely to be adversely affected if the proceedings are not heard as a matter of urgency; or due to the urgency of the case; or in exceptional circumstances when the court is satisfied that compliance with that subsection is not possible.
Guiding principles will be introduced for all those involved in the family courts, which will emphasise the importance of the welfare of the child or children involved, as well as promoting alternative dispute resolution (ADR) where appropriate and encouraging the efficient conduct of business in the family courts.
Currently divorce, judicial separation, civil partnership, and cohabitation cases must be taken in either the Circuit or High Court. Cases with a monetary jurisdiction of over €3 million must be taken in the High Court.
District Court jurisdiction
The act provides that these cases can now also be taken in the District Court, and it increases the jurisdiction of the District Court from its general limit of €15,000 to €1 million for these family-law cases.
District Court maintenance limits will also increase – from €150 per child per week to €500 per child per week; the maximum lump-sum order per child from €15,000 to €50,000; and the maximum weekly maintenance for a spouse from €500 per week to €1,500. Similar increases apply for civil partners and cohabitants.
The jurisdictions of the Circuit and High Court remain the same, except that the Circuit Court will be given concurrent jurisdiction with the District Court for the making of child care orders and related matters.
New rules of court
A new Family Courts Practice and Procedure Committee (see section 52), composed of the three principal judges of the District, Circuit and High Courts and no more than two members of the Courts Service, will propose new rules of court for the existing courts rules committees.
Joint applications for a decree of judicial separation or divorce are proposed, and there is a limitation on personal cross-examination by the applicant to the respondent in family-law proceedings, which is similar to the preexisting limitation contained in the Domestic Violence Act 2018.
The Law Society – under successive Family Law Committees, led by Peter Doyle and Helen Coughlan, and with the assistance of Dr Geoffrey Shannon, Director General Mark Garrett, and many others – has worked tirelessly to promote a better family-justice system. That work has yielded some positive changes and will continue.
Area of concern
While a number of civil-society organisations, the Law Society, and the Bar Council have, generally, welcomed the changes, one significant area of concern raised by them is the proposal to greater expand the jurisdiction of the District Court.
This, they say, would create a two-tier system of justice and lead to more delays and inefficiencies rather than less, due to the currently overworked and under-resourced nature of the District Court.
The Minister for Justice made changes to the final version of the bill, which has clarified the concurrent nature of the jurisdiction.
Section 39(3) states that “where family-law proceedings may, under an enactment, be initiated in the Family District Court or another court, nothing in this act shall require such proceedings to be initiated in the Family District Court”.
Greatest challenge
The greatest challenge for all stakeholders in the family-justice system is to ensure that the resources required to fund this huge programme of change are forthcoming.
Family law has always been, along with mental-health law, the ‘poor relation’ when it comes to funding. Unless these changes are properly funded, they will make the system worse rather than better, since they will create a ‘Rolls Royce’ system with a scooter budget.
We have, unfortunately, been here before, with the underfunding of the Children and Family Relationships Act 2015, which provided parties (in theory) with access to voice-of-the-child reports, but without taking into account the resources required to provide them.
The result has been an overwhelming of the District Court system in particular.
The Family Courts Act 2024 is a long-term solution to a problem that has been around since family law was first practised – that is, the underfunding of the family-law system.
We should not wait for the implementation of the Family Courts Act to improve our system – we should start the work now by:
- Streamlining the Family Court Rules,
- Implementing the necessary guidelines to improve focus on ADR in appropriate cases,
- Permitting joint applications where settlement has been reached, and
- Reducing the waiting time for divorce from two years to one, thus almost eliminating the need to issue judicial-separation proceedings – saving both costs and court time.
An interim working group composed of judges, county registrars, Courts Service staff, legal professionals, representatives of litigants, expert-witness representatives (such as forensic accountants), and section 32 assessors should immediately be established with a brief to consider what can be done now.
Most changes will not require significant resources. If we wait until the Family Courts Act is fully resourced, it will be too late for yet another generation of families caught up in the family-justice system.
Keith Walsh SC is a solicitor focusing on family law. He is the author of Divorce and Judicial Separation Proceedings in the Circuit Court – A Guide to Order 59 and co-author with Sonya Dixon BL of Domestic Violence: Law and Practice in Ireland, both published by Bloomsbury Professional.
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Keith Walsh
Keith Walsh SC is a solicitor focusing on family law. He is the author of Divorce and Judicial Separation Proceedings in the Circuit Court – A Guide to Order 59 and co-author with Sonya Dixon BL of Domestic Violence: Law and Practice in Ireland, both published by Bloomsbury Professional.