Keith Walsh SC and solicitor is a family lawyer practising in Dublin, he is a former Chair of the Child and Family Law Committee of the Law Society and the author of Divorce and Judicial Separation Proceedings in the Circuit Court – A Guide to Order 59, and co-author with Sonya Dixon BL of Domestic Violence: Law and Practice in Ireland, both published by Bloomsbury Professional.

KEITH WALSH SOLICITORS LLP

38/39 Fitzwilliam Square, Dublin 2, D02 FY81.

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Winner Irish Law Awards - Irish Family Law & Mediation Firm/Team/Lawyer of the year 2022, 2021, 2018, 2017

Winner Irish Law Awards – Law Book of the Year 2024

Radical overhaul of family law system will be the biggest change to court system for 100 years – but we cannot afford to wait for this long term change to happen, we need change now  

The Family Courts Act 2024 completed its passage through the Oireachtas on 7^th November 2024 and was signed into law by the President on 13^th November 2024. This marks only the end of the beginning of a long and tortuous path towards re-organising the family justice system following the introduction of judicial separation and divorce and which began with the publication of the Law Reform Commission’s Report on Family Courts in 1996. The changes in the Act will not come into effect the necessary commencement orders are made.

The main changes proposed are the establishment of a specialist family court division within the existing structures of the District, Circuit and High Court with the establishment of new specialist family law districts and circuits which will be different from the existing district and circuits. Although not specified in the Family Courts Act 2024, it is likely that these new districts and circuits would cover much greater geographical areas than the current ones and would provide for specialist Family Court centres of justice to be established around the country which would rationalise the entire Family Courts system into a number of regional ‘hubs’ and would be one of the greatest changes in the entire court system since the Courts of Justice Act 1924 established the District Court, Circuit Court, High Court and Supreme Court.  

The new Family Courts will sit in a different building or rooms in which sittings of any other court are held or on different days or at different times from the days on which, or times at which, sittings of any such other court are held. There is an exception to this where the safety or welfare of a party to the proceedings or a child to whom the proceedings relate is likely to be adversely affected if the proceedings are not heard as a matter of urgency, or due to the urgency of the case or in exceptional circumstances the court is satisfied that compliance with that subsection is not possible.

Guiding principles will be introduced for all those involved in the family courts which emphasise the importance of the welfare of the child or children involved as well as promoting ADR, where appropriate, and encouraging the efficient conduct of business in the family courts.

Currently divorce, judicial separation, civil partnership and cohabitation cases must be taken in either the Circuit or High Court, cases with a  monetary jurisdiction of over €3 million must be taken in the High Court. The Act provides that these cases can now also be taken in the District Court and increases the jurisdiction of the District Court from its general limit of €15,000.00 to €1 million for these family law cases.  District Court maintenance limits will also increase from €150.00 per child per week to €500.00 per child per week, the maximum lump sum order per child from €15,000.00 to €50,000.00 and the maximum  weekly maintenance for a spouse from €500.00 per week to €1,500.00. Similar increases apply for civil partners and cohabitants. The jurisdictions of the Circuit and High Court remain the same except that the Circuit Court will be given concurrent jurisdiction with the District Court for the making of child care orders and related matters.

A new Family Courts Practice and Procedure Committee composed of the three Principal Judges of the District, Circuit and High Court and no more than two members of the Courts Service will propose new rules of court for the existing Court Rules committees. Joint applications for a decree of judicial separation or divorce are proposed and there is a limitation on personal cross examination by the applicant to respondent in family law proceedings which is similar to the pre-existing limitation contained the Domestic Violence Act 2018. The Law Society under successive Family Law Committee led by Peter Doyle and Helen Coughlan and with the assistance of Dr. Geoffrey Shannon and Mark Garrett and many others in the Law Society worked tirelessly to promote a better family justice system and that work yielded some positive changes and will continue.

While a number of civil society organisations, the Bar Council and the Law Society generally welcomed the changes, one significant area of concern raised by them was the proposal to greater expand the jurisdiction of the District Court as they said it would create a two tier system of justice and lead to more delays and inefficiencies rather than less, due to the currently overworked and under resourced nature of the District Court. The Minister for Justice made changes to the final version of the Bill which has clarified the concurrent nature of the jurisdiction and s39(3) states “..where family law proceedings may, under an enactment, be initiated in the Family District Court or another court, nothing in this Act shall require such proceedings to be initiated in the Family District Court”.

The greatest challenge for all stakeholders in the family justice system is to ensure that the resources required to fund this huge programme of change are forthcoming. Family law has always been, along with mental health law, the poor relation when it comes to funding and unless these changes are properly funded they will make the system worse rather than better as they will create a Rolls Royce system with a scooter budget. We have unfortunately been here before with the underfunding of the Family and Child Relationships Act 2015 which provided parties in theory with access to voice of the child reports but without taking into account the resources required to provide them. The result has been an overwhelming of the District Court system in particular.

The Family Courts Bill is a long term solution to a problem that has been around since family law was first practiced – the underfunding of the family law system. We should not wait for the implementation of the Family Courts Act to improve our system, we should start the work now – by streamlining the Family Court Rules, by implementing the necessary guidelines to improve focus on ADR in appropriate cases, by permitting joint applications where settlement has been reached, by reducing the waiting time for divorce from two to one year thus almost eliminating the need to issue judicial separation proceedings saving costs and court time. An interim working group composed of Judges, County Registrars and Courts Service staff, legal professionals, representatives of litigants, expert witness representatives such as forensic accountant and s32 assessors should immediately be set up with a brief to consider what can be done now. Most changes will not require significant resources. If we wait until the Family Courts Act is fully resourced, it will be too late for yet another generation of families caught in the Family Justice system.  

Keith Walsh