Money matters create problems en route to harmonious divorce

Joan was an enthusiastic supporter of the constitutional amendment allowing for divorce

Joan was an enthusiastic supporter of the constitutional amendment allowing for divorce. Her husband had left her after a brief marriage and two children, and she then obtained a church annulment. Neither she nor her children ever received maintenance from him.

She is in another long-term relationship, and has two more children with her partner. He has been the real father for her two eldest children, who love and accept him. Indeed, the younger of the two is not even aware of the existence of Joan's former husband, as he left when she was a few months old.

It would appear that a civil divorce would tie up the legal loose ends of this situation. Yet when Joan was contacted recently by her former husband who told her he was seeking a divorce, she was filled with misgivings.

"I'm afraid it'll open a big can of worms over the kids. He's had no contact for over 11 years, yet he's now talking about access. He's only interested in Jim [her son] he doesn't care about the girl. Jim doesn't want to know him.

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"He left me with nothing but debts, and I had to put my life together. I'm working now, and Kieran [her partner] and I have a house. I don't want to have to divulge one single bit of information about my life to that man who I haven't seen for 11 years."

Joan's misgivings appear to be shared by most of the 95,000 people who indicated in the last Census they had once been married and the marriage had broken down. Only about 1,500 people have applied for divorce since it was introduced a year ago.

Joan is not alone in resenting the need to provide information of her financial affairs to a spouse whom she has not seen for over a decade, and who made no contribution to her present security.

Ms Muriel Walls of McCann Fitzgerald solicitors has a large family law practice. She says that while there has been a steady demand for assistance with divorce, there has been no rush and many people have drawn back.

"My clients fall into about four categories," she said. "First there are those for whom I have processed divorce applications with no complications, and it has all been done very quickly.

"Then there are those who already have a judicial or a legal separation, but they need to fine-tune the finances. We try to sort out the money stuff by negotiation, and then fast-track the papers.

"Thirdly, there are those where you know you will never get agreement on the finances, or any agreement at all. These go at the same pace as a full judicial separation, and take six months at least. It could take longer if there are problems of discovery of documents.

"There's also a fourth category - those who come in to me for advice. I explain all that has to be gone through, like the court looking at their finances, them swearing an affidavit of means about their current salary, etcetera. I see the blood drain from their faces, and I never see them again."

This issue of money, along with the need to have lived apart for at least four years, seems to be the main reason why people are not rushing into Irish divorce courts.

Because the constitutional amendment spelled out that the court must be satisfied that "proper provision" must be made for the dependent spouse and children, the court requires documentary proof of what that provision might be.

If any question of maintenance arises (it does not if neither spouse is dependent and there are no children), the parties must provide "affidavits of means" detailing their assets, income and outgoings. Where people have built separate lives following a separation that might have taken place a decade or more ago, they can be reluctant to provide such information.

However, according to Mr Kieran O'Mara, another solicitor who does family law, in most of the cases he has processed so far there has been almost tacit agreement between the parties that neither will file affidavits of means. "All they want is the piece of paper."

A legal or judicial separation is still an option for those whose marriages have broken down. The Legal Aid Board has seen a steady demand for assistance with divorce applications since divorce became available, but little reduction in the demand for separation.

When divorce became law last February there were already 1,200 people on its waiting list to make applications, according to the LAB's chief executive, Mr Frank Goodman. Since then another 1,000 have joined them, and some of those divorces are now coming through.

But in 1997 the LAB also processed 1,400 judicial separations, only 50 fewer than the previous year. Clearly people are not opting for divorce instead.

An obvious reasons for this is the Constitutional condition that, before applying for a divorce, the couple must have lived apart for at least four years out of the previous five. Most separating couples would not wish to wait that long before sorting out questions on the family home and maintenance of children and the dependent spouse, if appropriate. These matters can be dealt with under the law relating to separation.

Many who obtain judicial separations may not want to enter further legal proceedings to get a divorce. "Where people have judicial separations they are reasonably happy unless one party wants to remarry," said Mr Goodman.

The hesitation people show about divorce may also reflect its sheer unfamiliarity. "People are not yet used to the idea," said a solicitor in one free legal aid centre. "They look at what divorce is offering, and see they can most of these reliefs already. It's happening slowly for the few who need it."