Divorce laws, which require couples to separate for four years before their marriage can be terminated by an Irish court, must be changed urgently, according to former Fine Gael TD and prominent family lawyer, Mr Alan Shatter.
The four-year separation rule, introduced to stop the creation of a 'quickie' divorce culture, is actually failing to protect the interests of wives and children if the husband gets a foreign divorce after living abroad for just a year, he said.
Divorce laws here contained some of the strongest protections in the European Union for wives and children, particularly regarding access to life assurance and pension policies, he said. However, the protections can be bypassed if one spouse gets a foreign divorce - a move which could save some wealthy individuals millions in maintenance and the split-up of assets.
An Irish-based spouse faced with a partner who has left the Republic for a year to get a divorce would be "better off" if she could get to an Irish court quickly, rather than waiting for four years, he said. The protections offered by the Irish system are useless unless a spouse can get access to them before their partner gets a foreign divorce. "In Germany, for instance, a wife loses her inheritance rights after a divorce," he pointed out.
Currently, Irish courts recognise divorces granted in 13 other European Union countries, though not Denmark - and recognition will be extended when 10 new states join the EU next May.
"Our law concerning the recognition of foreign divorces is a shambles. It is unnecessarily complex, uncertain, bizarre and irrational," Mr Shatter told the Sweet and Maxwell family law conference in Dublin at the weekend.
"Its current state results from piecemeal judicial development and disagreement, political and legislative cowardice, inertia and European Union intervention and regulation by stealth." Courts began to recognise divorces awarded by the 13 EU states from October 1st, 2001 after the introduction on May 1st that year of the Brussels II mutual recognition of divorces regulation.
The four-year separation needed before couples can get divorced here is already beginning to conspire against the interests of wives and children, he warned. An estranged Irish spouse whose marriage collapses can, after living for one year in one of the 13 other recognised EU states, get a divorce and block the other spouse from instituting judicial separation proceedings here he said. "We are slowly witnessing the Europeanisation of our family law and the implementation of radical reforms which directly affect people throughout the country with practically no public debate," he said.
The Irish Constitution states: "A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that:
"i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the five years.
"ii. there is no reasonable prospect of a reconciliation between the spouses,
"iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law.
"iv. any further conditions prescribed by law are complied with."
