Proposed Family Courts Bill will create two-tier family justice system – The Bar of Ireland

21 March 2024

Reassignment of divorce, judicial separation, and co-habitation proceedings to District Court will add further delays to the ‘A&E’ of the court system

A ‘solution in search of a problem’, that will ultimately add time and cost to cases

The Bar of Ireland is calling for urgent amendments to the draft Family Courts Bill (2022) to avoid the creation of a two-tier family justice system, and in order to ensure there is fairness for all families before the courts.

The draft Family Courts Bill (2022) is currently before the Houses of the Oireachtas.

The Bill proposes the reassignment of most divorce, judicial separation, and co-habitation proceedings to the District Court. While The Bar of Ireland is supportive of the Bill in general, it has made a submission to Department of Justice outlining its strong concerns about the  issue of reallocating such proceedings to the District Court.

Land value up to €1m dealt with District Court not appropriate.

Proceedings where land (which would normally include a family home) up to €1million in market value is involved, will be automatically assigned to the District Court regardless of the complexity of their circumstances. The District Court is a court of ‘summary’ jurisdiction meaning a judge dealing with proceedings in a brisk manner, which is inappropriate for many of these cases, according to The Bar of Ireland.

Those proceedings involving land valuing more than €1million will remain at the Circuit Court with a more considered and less hasty process for the exact same or perhaps even more straightforward case.

Burdening an overworked District Court.

The District Family Court is already under pressure, and an influx of divorce and other cases will increase its workload by 11%, adding thousands of cases annually. This will displace existing family law cases causing further delays for all family litigants and impacting on all those whose have cause to go before the District Court.

Solution in search of a problem’

The Chair of the Council of The Bar of Ireland, Sara Phelan SC, said;

The rationale for this proposed reassignment is not clear. The Bar of Ireland is not aware of any concerns expressed by those involved in the family justice system about the allocation of jurisdiction between courts. This seems to be a solution in search of a problem.”

Of primary concern to us is that the approach that is currently proposed in the Bill will result in the creation of a two-tier family justice system. Not only is it not fair, but it will also only add to what is an already over-burdened District Court, often described as the ‘A&E’ of the courts system.

Complex process requiring time and space

Sara Phelan SC continued;

Parties emerging from marital and relationship breakdown deserve to have their cases heard in a considered manner. A court ruling can have a lifelong effect on the parties and their children.  This is a process that takes court time, and that is not how the District Court operates. Contested cases belong in the Circuit Court with a more considered approach made available for all, not just for the better off.

If the rationale for this is to reduce legal costs for parties, then that is misplaced. Parties in this situation want to have their cases heard properly and to be treated fairly. Adding thousands of cases – many of which have a high degree of complexity – to the busy District Court, will all just add time, and ultimately cost to the process as more court hearings will be required. Not to mention the emotional toil on the parties.

We are calling on Government to revisit this aspect of the Bill urgently, and to afford the same fairness to all families and those in the midst of relationship breakdown.

The Bar of Ireland has written to all Oireachtas members and Justice spokespersons outlining their concerns, together with a copy of our submission to the Bill.