The widespread welcome accorded the Supreme Court judgment in the Hanafin case — which gives the green light to the introduction of divorce legislation — is premature. The introduction of divorce legislation would generate an enormous amount of extra family law business which will be simply loaded onto a system which has already effectively broken down. The Law Reform Commission, an organisation not given to hyperbole, recently described Ireland's family courts system as being "in crisis" and "a sad parody" of that which might be expected in a state whose Constitution places such emphasis on the protection of family life.
Family law in Ireland has changed more in the last decade than it did in the previous century. New business triggered by the Judicial Separation Act, 1989, was simply grafted onto the existing system without any commensurate increase in funding. In 1988 there were 68 applications before the courts for the remedy now known as judicial separation. In 1994 the figure was 2,806, a 40fold increase. In the case of a family law client, whether a battered wife or deserted husband, who applies to the Dublin District Court for a judicial separation decree today, that case will not be heard until, at the earliest, January 1998. The position outside Dublin is invariably worse and in some venues, much worse.
At present people who can no longer live together and whose conflict is often damaging to their children will have to endure several years more under the one roof until the court hears their case. This is the bleak reality of the present system. One can hardly begin to imagine what the position will be when divorce legislation comes into effect. The present intolerable delays discourage parties from reaching amicable solutions by agreement. Because they will be aware of the long delay for a court hearing, couples will frequently intiate proceedings without exhausting all other possibilities. Once proceedings are initiated, negotiations become progressively more difficult. Parties often find themselves under doctor's care during the extended waiting period for a court hearing. The children of a couple going through this process may suffer long-term trauma and incalculable damage. They are the silent victims. Their lives are put on hold, often for several years, and they are frequently used as pawns by one parent against the other in disagreements which occur during the waiting period.
Women in particular suffer cruelly during their extended wait for justice. Those not living in physical fear often suffer great mental cruelty and distress. Some flee to the relative sanctuary of women's refuges. Many have inadequate resources and they and their children are obliged to live from hand to mouth, often for several years. When the case eventually goes to court, because of pressure of business the judge is often forced to make his or her decision after a hearing that is all too brief and huried. Such judges often hand down decisions which further exacerbate family conflict.
The physical condition of many courthouses outside Dublin is neither adequate nor appropriate for family law hearings. Couples in conflict are often forced to consult their lawyers in the open air in all types of weather, or, alternatively in crowded hallways a few feet from where the other party is consulting his or her lawyer about the very same business. The State has failed to provide the resources, structures and personnel to make the present legislation work. It is obvious that, before we introduce more law, giving rise to yet more business, we must provide the wherewithal to make the present system work properly and increase resources accordingly. The appointment of extra judges, as promised by the Government, will be grossly inadequate. Radical surgery is necessary. The Law Reform Commission, in its recent report on family courts, indicated clearly what needs to be done. The Government has accepted that report. If, however, it continues to refuse to implement its recommendations it will be condemning even more of our citizens to continue to endure a position which is not only patently unconstitutional but fundamentally unchristian.
