Family Courts Bill will create ‘two-tier’ system for people seeking divorce or legal separation, say barristers

Proposals to have all divorce, judicial separation and co-habitation cases where land and the family home are worth less than €1 million heard at District Court level will create a “two-tier” justice system, the Bar Council has said.

The “arbitrary” €1 million distinction will mean better-off families and a higher proportion of those who live in Dublin will benefit from more in-depth consideration of their cases than those heard summarily at District Court level, the council has said in response to the Family Courts Bill 2022.

The council, which represents barristers, said the reasons for the decision to direct most cases towards the District Court were not clear and it did not believe a stated aim of reducing legal costs would result.

The proposed new law will establish a Family High Court, Family Circuit Court and Family District Court as divisions within the existing court structures as part of a major reform of the family law service generally.

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The council, which is in favour of most aspects of the Bill, has written to members of the Oireachtas and made a new submission on the Bill which focuses mainly on its concerns about the direction of cases towards what it says is an already over-burdened District Court.

“Divorce, judicial separations and co-habitation proceedings often give rise to challenging and complex legal and factual scenarios,” it said in its letter to politicians.

“As well as addressing the breakdown in relations, the courts have to disentangle economic and welfare interests and adjudicate on what is in the best interests of dependent children. The decisions made will have a lifelong effect on the parties and their children.”

Yet the District Court is already overworked and under-resourced, it said. The proposed change would increase the court’s workload by approximately 11 per cent.

“The Bill as is stands will result in the creation of a brisk, ‘summary’ system for the less well-off operated by the overworked and under-resourced District Court,” the council said, while those who are better off will have their cases receive “a more considered and less hasty process”, even though their cases may be just as, or more straightforward as cases directed towards the District Court.

On legal costs, the council said they are calculated against the time involved and the complexity of the issues and, thus, the costs to litigants would not be reduced by simply reassigning cases to the District Court.

Greater delays, interim hearings and cases having to be transferred to the Circuit Court for reasons of complexity would all add to the costs involved, it said.

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