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Submission to the Law Reform Commission
Dublin Castle
18 July 2007
Madam President, members of the commission and all present. It was an honour to address this commission at the opening submission in Galway this year and I feel privileged to be able to address this learned gathering at the Dublin Castle with its distinguished history and again, hopefully bring some colour to these proceedings. I sincerely hope I do not have to have my back to the wall when all is said and done.
The history of the place is a constant reminder of the vagaries of the law of the day. It seems we are slow to learn at the expense of the welfare of the general public for whose protection the laws were set in the first place. These days even the simplest of tasks of serving court papers is tantamount to climbing the legal Everest whereby a party can simply refuse to acknowledge receipt of papers advising them of a court hearing.
I could offer quotes from many a legal scholar but I shall speak as a father who adores his children, has done all that a father is supposed to do and indeed performed the duties of a mother. Hence I believe that I qualify to speak on behalf of all decent, devoted fathers who have been wronged and vilified by the current system in the application of family law. It’s ironic that the apple of my eye is aspiring to be a barrister. May god help me!
“Law must constantly evolve in order to keep pace with the dynamics of the society within which it is framed.” Quite astonishingly while society is peppered with modern modes of transport family law still seems to be travelling on a horse driven cart.
Today I shall pick on the final rusty nails in the coffin of a failed marriage that leaves one open to legal attacks on their future, or what little there is left of it.
Firstly, the dreaded words, interlocutary process. A few lawyer friends of mine could not even spell the word when in conversation. Not bad for Trinity law graduates. The aids of family law will find no cure unless the legislation is changed truly reflecting modern society and allowing common sense to prevail.
For example, one who has been granted a favourable settlement from the joint assets by the generosity of a benevolent judge and goes on to ruin the rich pickings, may still come back and look for more if the poor surviving former spouse manages to dust himself off and makes something of his life.
The final settlement of divorce has no meaning and credibility. Every legal settlement is open to challenge and even a challenge is open to a further challenge such being the idiosyncrasy of the current family law system. I never knew marriage is the death knell of a person’s entire life through no fault of his own. Ask the question as to whose welfare it serves and the fingers are pointed in all different directions. The ‘no fault divorce’ has an awful lot to answer for. One spouse can walk out on the marriage contract, (usually the mother) and still force the other to pay for the upkeep of both themselves and the children of that marriage.
“Family is about commitment; sacrifice, caring for each other without financial reward, putting the other’s needs above our own, and supporting each other through difficult times”.
So why does the law punish men who adhere to the above principle.
Next, arises the question of the distribution of assets. I personally think Dick Turpin would have changed his habits and vocation if he knew about family law.
A family’s assets compiled through generations of hard work can be legally robbed of them because they walked into the quagmire of married life and thereafter. With one in three relationships failing, the future prospects for family law shares look very promising. I wonder if I should ask Eddie Hobbs for his professional opinion. Why is it not possible to make a fair allocation to the incoming spouse depending on their contribution to the married life rather than willy nilly making an allocation of 50% of all joint assets and more?
Again it beggars belief that such little common sense exists in current family law practices. All a person has to do is open one eye to the reality of life and often see cases of people who get into relationships with nothing to contribute to a family life except seeking entitlement to security and a comfortable lifestyle without having to lift a finger.
Thirdly, the practice of judges directing advice at family court hearings. I find it astonishing that when two parties are represented by two very able teams of legal counsels, why does a judge deem it necessary to have his or her half penny’s worth? Is there something we are not being told or as a lay person I need to hire a counsel to have it explained to me?
If the primary consideration is the best interest of the child then surely the gender of the parent is completely immaterial. On the contrary the hostility often displayed in judgements against the father bear no semblance to the aptitude and parenting ability of a parent.
Now there is to be the appointment of guardian ad litem, discussion on paternal leave and many other trivia coming into the foray while ignoring the damage caused to families which has reached such a crescendo whereby when a wife mentions separation the husband has taken the lives of not only his partner but the children and also his own. Recent news from the USA and UK bear witness to the fact. It does not say much for family law when desperate people are driven to taking such drastic and cruel measures.
We must sit up and think as to how much more the people have to suffer, especially our children. The principle of “the paramount welfare of the child” should be applied for what it truly means.
Who prospers is not for me to say. All I can say is it’s definitely not the family.
So much for the family law!
Madam president I shall not bore everyone to death, hence I shall emphasise just the three words that are close to my heart and may hold a lot of meaning in curing what ails the family law, ‘common sense, common decency and accountability’.
For it to be seen to be just, one must eradicate the curse of ‘in camera’ thus enabling family law to be transparent in its practices.
One may be surprised at the change in the workings of a family court once it is open to scrutiny.
It may even provide us with dapper judiciary looking sublime in attire when eventually imparting justice for as we understand it, literally.