Vol. 433 No. 5
15 Ms Keogh asked the Minister for Equality and Law Reform if, in view of the high cost of seeking a judicial separation, he will give the plans, if any, he has to financially assist those who cannot for financial reasons avail of this procedure; and if he will make a statement on the matter.
Since the coming into effect of the Judicial Separation and Family Law Reform Act, 1989, a total of 1,514 persons have been granted legal aid in judicial separation proceedings.
The scheme of legal aid and advice operates for the purpose of enabling persons of limited means to be legally represented before the courts. The scheme depends for its resources on Exchequer moneys and, accordingly, is subject to the same constraints to which other bodies in the public service are subjected. The eligibility requirements for legal aid are kept under continuous review but given the limited Exchequer funding of the scheme it would not be possible to increase those limits in a way that would meet all applications concerning judicial separation.
As Minister with responsibility for the legal aid scheme I am, of course, concerned at the high costs incurred by the Legal Aid Board in dealing with judicial separation cases and I am examining ways in which those costs could perhaps be reduced.
There are alternatives to court proceedings for a separation and, indeed, the 1989 Act encourages parties to consider those alternatives. Parties may negotiate a separation agreement with the assistance of a solicitor and there is the possibility of engaging in mediation to help effect a separation on an agreed basis. The value of mediation in assisting spouses to reach a voluntary agreement without the need for court intervention was fully recognised in the White Paper on Marital Breakdown. I have previously indicated to the House my commitment to ensuring that we have a strong family mediation service and proposals are currently being examined in my Department with a view to strengthening and expanding the service.
Will the Minister confirm that the average cost of getting a judicial separation is £2,500? Generally separating couples seek a judicial separation only when there is disagreement between them and it is impossible to reach an agreed settlement. In a judicial separation case are the means of both parties assessed jointly or separately for civil legal aid? Does he agree that it should be mandatory on a person seeking legal aid in a judicial separation to go first through the process of arbitration and mediation so that there is at least a possibility of reaching a settlement and thus minimising the cost? I am aware that couples who have to fund the costs themselves are more inclined to go to arbitration; indeed, I know of very difficult cases where agreement was reached in arbitration because of the skills of the mediator or arbitrator. There is a number of private mediation services which have been particularly successful because of the skills of their staff. If it were mandatory on the Legal Aid Board to require applicants for a judicial separation to go through an arbitration procedure, does the Minister agree that it would minimise the costs?
I certainly agree that it is highly desirable that people should be encouraged to avail of mediation rather than going to court in judicial separation cases, where that is possible. Whether it should be mandatory is another matter. The existing legislation requires the applicant's solicitor to give a certificate to the court when issuing the application that he has informed the applicant that mediation services are available and advised the applicant to avail of them. It is up to the parties themselves to decide whether to do that and under existing legislation they cannot be compelled to do so. For mediation to succeed there has to be at least a willingness by both parties to participate in it. If they are not prepared to agree to try the mediation process obviously they are not going to succeed in reaching an agreement.
As to the question of the costs, I have no information that suggests that £2,500, the figure mentioned by the Deputy, is the average cost of such a judicial separation application. No doubt many applicants would pay that, possibly more. Personally I think it is excessive and I do not think that the average case heard in the Circuit Court should cost anything like that figure. There could be exceptional cases where a great deal of property would be involved, perhaps necessitating the case having to be heard in the High Court, with barristers and solicitors involved. In such cases the costs could conceivably come to even more than £2,500, but in the average case heard in the Circuit Court I would have thought the costs would have been considerably less than that.
Each applicant would be assessed on his or her own means for civil legal aid. For example, if the wife was the applicant, her means would be assessed and in the instance where her husband is in a strong financial position, she, the separated wife, would get legal aid and he would not.
Does the Minister agree that the mediation service — which I think everybody supports — is available only in certain parts of the country and indeed in many parts of the country one cannot avail of it even if one wishes to take that option?
That must be a difficulty in some parts of the country. Perhaps Deputy Harney hit the nail on the head, because all too often there is a reluctance to avail of it even if it is available. Certainly that was my experience in the years I was dealing with these questions. When I did put it to the parties, both wives and husbands, on occassion it was not well received, because for some reason the culture or concept of mediation is not warmly received. Usually the difficulties have engendered bitterness and my experience was that there was an inbuilt reluctance to agree to participate. I think that is the major factor. We have to try in some way — I am not sure how — to encourage in so far as we can the culture of mediation so that people can accept that, although their marriage has broken down, that is no reason not to try to resolve the other outstanding issues without having to battle it out in court, where the only gainers at the end of the day are lawyers because their fees come out of the joint family assets. We have to try to encourage that culture. I agree that the mediation service needs to be extended. The kind of service provided by the Family Mediation Service in Dublin needs to be extended to the greatest possible extent. There is an increasing number of consultant mediators in private practice available at various locations throughout the country and I believe they are building up an appreciable volume of work.
