The Irish Times
Twenty years ago on Tuesday, the people of Ireland voted, by a small margin, to allow divorce, following a campaign that had been marked by sharp divisions, memorable quotes and dramatic predictions.
Those opposed to its introduction had suggested marriage as we knew it would change beyond recognition. Under the slogan “Hello Divorce, Goodbye Daddy”, some argued Irish men would desert their wives in droves.
But the predicted rush never happened. Today, Ireland has the lowest divorce rate in the European Union, at 0.6 per 1,000 inhabitants, according to the EU’s statistical arm, Eurostat.
So why has Ireland not embraced divorce as enthusiastically as most of its neighbours?
On November 24th, 1995, the Fifteenth Amendment of the Constitution was passed by 50.3 per cent of voters. Though the Catholic Church strongly opposed the amendment, its influence was not sufficient to ensure defeat.
Last-minute comments by then taoiseach John Bruton were credited with having swayed the Yes vote, while the routing on television of the No campaign’s head, retired judge Rory O’Hanlon, by Fine Gael’s Michael Noonan, swung some in the centre-ground.
At a vital juncture in the Northern Ireland peace process, Bruton said the referendum was about equality for minorities, while it was important that “we show the State respected the minorities in its own midst”.
More prosaically, wet weather that dampened turnout in the west of the country was credited with reducing the extent of the No vote.
In all, 818,842 people voted Yes and 809,728 voted No, though the 5,372 ballots that were spoiled could have decided the outcome if things had gone differently.
The country was divided geographically. The Yeses were strongest in Dublin, Kildare and Wicklow. Also in favour were Cork South Central, Louth, and Limerick East, where there were only 44 votes between the sides. The rest of the country voted No.
Dún Laoghaire had the highest Yes vote, at 68 per cent, while in Cork North West, nearly always one of the most conservative districts in the country, the vote was 34 per cent, the lowest in the country.
Legislation to put into effect the referendum was enacted in 1996, and in 1997 the first divorce orders came through, with the courts granting 95 decrees.
Numbers increased dramatically at first and peaked at 3,684 in 2007. They have been reducing ever since - down to 2,638 in 2014.
There is no simple answer to why that is.
Professor of Social Science at UCD, Tony Fahey, says the rate of divorce in Ireland now would have been considered low in other countries in the 1950s.
When divorce was first liberalised in western countries, the rates increased rapidly, from one per 1,000 inhabitants, to three and then to five. In the US, the rate hit a high of 5.5 for a time.
The growth lasted up to 30 years before levelling off.
In Ireland, the rate peaked at 0.9, and is now 0.6.
It may be that simply fewer people are bothering with divorce. When the process was first liberalised in other countries, one of the spurs was that people wanted to enter a second union and have children, and that prompted them to want to get married. But the significance of marriage has changed since then.
Countries, including Ireland, have become a lot more relaxed about premarital co-habitation, sex outside marriage and non-marital child bearing. The impetus to remarry has reduced.
Marital breakdown is estimated at double the divorce rate, Fahey says, but even that is quite low.
Ireland is also one of the few countries in Europe with a two-stage divorce process - separation comes first, after a year of relationship breakdown, but divorce requires that the couple is separated for four out of the previous five years.
Dr Linda Connolly, director of the Institute for Social Science in the 21st Century at University College, Cork, says that to understand divorce, society must look at what is happening to marriage.
Marriage is being delayed while childbearing is happening later and later, too: “Ireland has the oldest mothers in Europe, we are having children later and slightly more than other European women,” she says.
Fahey says the average age for marriage in Ireland was at its lowest, 24, in 1977; it is now around 32.
It is now exceptional for people to get married without first having lived together for some period.
“What we have is almost a standardised system of trial marriage … and a lot of what might have happened in the past as marriage breakdown, now takes the form of breakdown of co-habiting union, which nobody pays any attention to because it was never formalised,” he says.
The couples who do stick together and go on to get married are a bit older, and have had a bit of experience of each other: “Maybe it helps select people into marriage where the marriages are a bit more likely to last,” he says.
Another contributory factor appears to be social class; the more educated the couple, the less likely they are to break up.
Fahey says there is much talk of neo-traditionalism among the educated in the US, where the trend has been particularly identified, and real disorder in family life is perceived as happening down the social scale, partly associated with economic pressures.
But all of those factors only take the theories so far. Co-habitation is no guarantee of more stable marriages. In Sweden, where co-habitation rates are high, the divorce rate is also high.
“There is a whole lot you can point to, but it does seem to come down to what marriage means in Ireland; there is caution about getting into it in the first instance and a willingness to stick with it afterwards,” Fahey says.
The perceived value of marriage was also demonstrated in the recent same-sex marriage referendum, when people fought and won the right to participate in the institution.
Usually, those still against divorce argue that Ireland’s economic collapse stopped the climb in the numbers, not any belief in traditional values.
However, Fahey dismisses suggestions that the peak in divorce in Ireland, in 2007, was linked with the economic boom.
The marriages of those who divorced in 2007 broke down at least four years before that, he says. He traces that back to a wave of youthful marriages that took place in the 1970s. “People were enthusiastic and rushed into marriage, and had cause to regret it later on.”
Connolly highlights the work of sociologist Carmel Hannan, who connects the reluctance of farmers to enter marriage in the past, because of all the traditional issues of the family being tied up with land and property, with them being the least likely group to be divorced.
“There is almost a resilience of traditional values alongside quite profound change at the same time,” Connolly says.
She also notes three out of four children in Ireland live in two-parent households.
“Does that suggest the so-called nuclear family has broken down? No, I would say, but there does seem to be a reluctance to marry, and women in Ireland are prepared to put motherhood before marriage. It’s a very interesting dynamic.”
Legal professionals highlight Ireland’s “two-tier” system as the biggest contributor to a low divorce rate.
Marion Campbell, a family law solicitor for more than 40 years, says when people decide they are separating, they are at their lowest. When they come to her they “want out” and are not prepared to wait four years. They decide to seek judicial separation.
“It is expensive and it can be very, very stressful. I think a lot of people, when they come out of it - the last thing they want to do is to go back into it again for a divorce,” she tells The Irish Times.
Cost of divorce
The cost of a divorce, with legal representation, may start at about €2,000, but can quickly grow if a case is complex. Legal bills average €7,000, but cases needing two days’ hearing at the Circuit Court could cost between €15,000 and €20,000 per person.
If a barrister is required, the costs go up, and if a case ends up in the High Court, which often happens with wealthy couples, costs could be in six figures. Some couples opt to undertake the divorce themselves, often on the basis that their separation agreement will stand, or if they have no assets.
It is possible to manage the paperwork for less than €200, and family courts have been processing applications from a growing number of lay litigants in the last few years. Others don’t bother taking the step at all.
“A lot of people who don’t qualify for legal aid are holding back on divorce,” Campbell says. “Unless they want to get married again, the judicial separation makes all the orders they are looking for, like property, pensions and financial orders.”
She says the two tier system is “a nonsense” and far too expensive. She believes judicial separation should be abolished and people should only have to wait a year for divorce, instead of needing to be separated for four out of five previous years.
“If the marriage is over, the marriage is over and they should be eligible to issue divorce proceedings at that stage,” Campbell says.
At the time of the referendum, despite assertions of a rush to divorce, Campbell says she did not believe there would be one.
“Most of the clients I saw didn’t anticipate divorce because they didn’t want to get married again … the Catholic Church was very prominent and there is still that position out there - that divorce would go against their principles.”
The trigger for divorce is remarriage or else a desire to protect substantial assets.
Campbell says the first thing she advises separated people with a considerable level of assets to do is to issue divorce proceedings as soon as they qualify to do so.
“There is less likelihood of the judicial separation order being reviewed in the context of divorce once proceedings are taken very shortly after the separation is heard,” she says.
Some legal practitioners argue that divorce peaked in 2007 because wealth then peaked. They say, apart entirely from the legal bill of divorce, many couples can no longer afford to have two separate homes.
During the boom, the big legal firms practised family law, but pulled out when the economy collapsed.
Well-known companies that continue to practise include Gallagher Shatter, Noonan Linehan Carroll Coffey and McKeever Rowan. There are many lone practitioners, some who went out on their own after leaving the big firms.
A barrister who did not wish to be named said that, before the crash, people practising family law were making a lot of money because their fees reflected the value of the assets, but when the fees went down it became less attractive.
The pool of barristers practising family law is small - 132 list the specialisation on the Law Library’s website. Those at the top include senior counsels Gerard Durcan, Mary O’Toole, Cormac Corrigan and Dervla Browne.
Practitioners say it is a highly competitive area, with everyone watching what everyone else is doing and newcomers struggling to break through.
Many divorce cases settle before they get to court. This is partly attributable to long delays in getting cases onto lists.
One barrister says settling a case involves skill and a lot of hard work. It also requires practitioners to take on more responsibility, whereas going into court with the case would not result in so much responsibility.
Another barrister says pre-court negotiations work for many parties, but some people just need to go to court.
“A party will want the experience of getting into the witness box and telling their story; they want their own voice to be heard,” he says.
They want the judge to tell them they are right, but the courts do not attribute blame in divorce. Judges have no interest in “moral blameworthiness”. They will simply make the determination that the marriage has broken down.
“They take the view you must respect people in all their capacities, you do not judge people on their emotions and their private lives, but sometimes the public isn’t ready to make that jump,” he says.
He says the sequencing of decisions in separation and divorce cases needs to change.
“The first function of the court should be to determine what is in the best welfare interests of the children involved,” he says. Then the house, income and other issues should be looked at.
He also sees judicial separation as a hindrance to divorce. Matters are settled at separation stage, then one person wants a divorce and the other person views it as “another bite at the cherry”.
“You end up running up a big legal bill, old issues are rehearsed and even if the agreement doesn’t change, old wounds are reopened,” he says. “The policy needs to be revisited.”
He had not expected a rush to divorce once it became legal.
“Marriage is a question of status and status is a component of an individual’s identity,” he says.
“The decision to divorce is a very public declaration about the nature of the relationship between people; some people are very comfortable with it, some are not comfortable at all.”
That reality was something John Bruton was cognisant of when he canvassed door-to-door for divorce 20 years ago. People who were already separated raised some concerns with him.
“They had made financial arrangements under a separation and were worried that the terms of their separation could be reopened as a result of a divorce application by the other party,” he says.
The low uptake of divorce does not surprise him. The formal structure of marriage creates a sort of certainty that can support people in their relationship through difficult as well as good times, he says.
“I think most people are committed to long-term relationships and recognise that a marriage is the best way to assure a happy and fulfilling life, wherein one takes responsibility for one’s spouse and one’s children.”
He also says people tend to assume the “very strong Christian tradition” has gone away, but, in his view it has not.
“There are countries where aggressive secularism has broken those sorts of commitments down; there are countries one could mention that secularism is almost the religion of the state - that isn’t and hasn’t been the case in Ireland,” he says.
“I also think that even from an entirely secular point of view, the case for marriage is a very strong one.
“I think when you are talking about an institution that is as old as marriage, older than any of the churches and religions we have … changing it is something about which people are naturally cautious, though maybe recent events would suggest otherwise.”
So the cautious acceptance of divorce in 1995, with the vote passed by the thinnest of margins, was a reflection of a reluctance that would last? “I think so, yes,” Bruton says.