My Blog

My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.

Wednesday, August 30, 2017

Restraint


The World is holding its breath while North Korea taunts the US President.   Headlines tell the World, meaning, the Donald, to exercise restraint.  President Trump does not appear from experience so far to do restraint.  How easy is it for any of us to exercise restraint?  Not very easy at all particularly if we are in a crisis of some sort and particularly one which touches us right at our core. 
I know from practising family law over many years that restraint is a virtue in short supply in this area at any rate.  And yet restraint is key to our coming out the other side of relationship breakdown intact and with our family and values intact.  What happens if we don’t exercise restraint?  Complete chaos to put it in a nutshell.  If a partner tells you that he or she is seeing someone else, will it help to thrash their car, clothes, lock them out of the house, scream and rant in front of children – no, of course, it won’t!  It is nonetheless a fairly typical response. It is, however, a damaging response particularly for children.

What can we do in the event of a relationship breakdown to ensure we do not “lose it” with disastrous consequences, and that we behave with restraint?  Well, first of all, we should acknowledge that we need help to deal with this. A good lawyer is essential, as is a good counsellor.  Pick a lawyer who is not going to escalate the row as all that will do is cost you more money than it needs to and alienate everyone so that healing is nearly impossible.  Your lawyer should be able to tell you all about the fabulous alternatives that are now available instead of going to court.  Alternatives, such as mediation, collaboration, managed negotiation.  There are many and varied ways of practising each of these processes or “actions” as I like to call them. It is important that you pick the right one for you with the help of your team.  Of course, your lawyer will also know all about the traditional routes as well, however, these tend to be expensive and not always suitable. You should make an informed decision, calmly.  As well as your lawyer, you need a good counsellor to see you through. Talk to your lawyer about this.  

Thursday, February 2, 2017

Dogs and new tricks

If you are unfortunate enough to have your marriage end when you are in your 50s or 60s and sometimes even 70s then with that stick in the mud attitude, your road ahead will be much tougher than it needs to be. However, if you still see life as a journey with learning involved in every crisis and at every juncture, then marital breakdown does not need to be harder for you than for others half your age. Family breakups are always tough but we can make them harder than they need to be. Remember the Borg in Star Trek who said “Resistance is Futile”? It is not so much that you should not resist, as that you should be resilient and to a degree flexible in your approach to this and probably every crisis in your life. And so, marital breakdown does not have to be a screaming match with everyone behaving at their very worst. It does not have to involve families divided and endless prolonged conflict. There are other ways of doing this. We call them alternative dispute resolution methods. It should be said, however, that a lot of people when hearing of alternative methods will denounce them as rubbish and declare that everyone knows that people behave badly in these situations and that is just the way it is! That may be because they also believe that old dogs cannot learn new tricks or it may be that they have a very limited view/experience of their own ability to behave or the ability of the human race in general to act for the greater good.
Alternative dispute resolution methods are such things as collaboration, conciliation and mediation as well as managed negotiation to name a few. They are alternative because they are alternative to going to court. Since Irish family law is conducted in private, i.e., “in camera”, meaning members of the public are not admitted, very few people have any idea of how this branch of law is conducted and what happens in family court. That is a good and a bad thing but that is another article. Unfortunately, it is too late after the court experience to wish you had tried one of the alternative routes. I am over 30 years in private practice and 25 of those are as a family law specialist. For most of my 25 years in family law, I have been a litigation specialist. However, in the past 8-10 years I have explored the alternatives and I have qualified as a practitioner in many of those methods of practice. First of all, I can assure people that collaboration, mediation and managed negotiation do work and work well for those willing to give it their best shot. Secondly, it is a far superior way of resolving matrimonial/family disputes for the vast majority of people than going to court. Thirdly, with the right team, any couple are capable of resolving their dispute alternatively.
Why not court? There are a number of reasons. First Judges are almost always under time constraints which means that you will almost certainly not get the hearing time you would like to get. Second, a Judge is just one person with all that one person’s baggage. Of course, a Judge is going to administer the law and have regard to the precedents but that said, family law is a unique area in that everyone comes from a family and has a particular experience of family which they bring into the situation like it or not. That is true of all practitioners of family law whether they are Judges, barristers or solicitors but in my experience, only those who have worked in alternative dispute resolution have a healthy self-awareness of that fact. Thirdly, your case is likely to be mostly about people ie your family, children etc., and extended family and situations, ie money, houses and schools, rather than law as such and reviewing your particular situation under the strait jacket of the law may not yield the kind of solution best suited to your situation. Cases with complicated legal issues and/or the kind of fraught situation that requires a judicial input should be brought to court. There are situations that will always require a Judge and a court hearing. Most people in a family breakup do not require that kind of intervention. Fourth, this is your life and you deserve the best that money can buy.
There is always resistance to change which I suspect accounts for the popularity of such sayings as – you cannot teach an old dog new tricks. We should not close our minds to the possibility that there might be a better way of doing things. The resistance to change comes not just from people in breakup situations but also from their families and friends as well as legal practitioners for many and varied reasons. I think that for extended family and friends it can be very difficult indeed. Some of them may have gone through the experience themselves and be unaware of alternative methods and therefore, will not recommend the alternatives. It should be pointed out that friends who have separated or divorced themselves can sometimes re-enact their own case through their separating friend particularly if their case was highly conflictual or did not resolve to their liking. Such parties on hearing of alternative more civilised methods of dispute resolution will advise to “get a real solicitor” generally meaning someone who would fight over two flies going up a wall. Apart from the damaging impact that ongoing or high octane conflict can have on families, on the separating parties themselves and on their children, it is important to bear in mind that the higher the level of conflict, the greater the cost. When a child is attacked, or hurt, a parent rushes in to try and remove the hurt. In a marital breakdown, parents will have the same instinct where their own adult children are concerned. That is not always helpful in the situation as it may serve to polarise the sides more than has already taken place and accordingly escalate conflict.
Collaborative family law practice requires a team like approach to work effectively. For a team to be effective that team should be familiar with one another’s styles of working, have worked together successfully in the past, be highly trained and skilled and above all, trust one another. Such a team can achieve miracles as long as everyone involved is open to that possibility. Even if there are no “miracles” there are invariably peaceful and lasting solutions which because they are the product of the team and the team includes the couple themselves, will ensure co-parenting and civility going forward.
Practitioners of collaborative family law often refer to it as “cost effective” which has a different meaning to “cheap” for those sensitive to the nuances of language. Collaborative family law is not cheap and when we say it is cost effective we mean “bang for your buck”. The process works around you rather than you trying to fit into a court framework and schedule. It concerns itself while you are present only with you unlike a typical court day where you will mill around with many other separating couples all competing for the available space and time of the court on that particular day. The process will listen to whatever you have to say and work with you to articulate whatever you feel you need to say unlike the court which will pre-determine what is important and actively silence that not deemed of relevance to the court. The process will last as long as or as short as your particular situation requires unlike the court which will allot a set time for your case and will not welcome much variation in that time table.
Collaborative family practice is not easy. Like all voyages of self-discovery it is sometimes envigorating, occasionally tortious, by times satisfying and always difficult. In my experience, there is very little worth doing in life that is not difficult. It is speedier in an overall sense than going to court but because you participate in the process directly as opposed to having a process enacted upon you, it can feel slower and more intense at the time. You can go through somewhere between 6 and 10 meetings on average spanning 3-9months or you can go to court and from the time you first consult to the preparation, issuing and serving of court papers (ie proceedings) to the date for hearing (trial date) it will take somewhere between 18 months to 2 years. In cost terms, each meeting will seem expensive but when you put the cost together with the fees and expenses involved with going to court, it generally works out the collaboration is less expensive but you also get far more value for your money. And so, you can be a wise old dog or just an old dog – it is your choice!

Friday, April 29, 2016

Gary Linnekar, DIY Divorce and Mathematical Equations.

It would appear that Gary Lineker and his wife are divorcing because he does not want a family and she does.  He feels that he is too old at 55 and with 4 children already whereas she is 36.  You would have to wonder if they discussed this before marriage? This is Gary’s second marriage. His first marriage ended after 20 years or so, and it is likely that Gary had to pay up handsomely and why not, it was a 20 year marriage with several children and all that entails. However, we are told it was amicable.  Perhaps so, but we should probably bear Gary’s history in mind here when examining Gary’s comments about divorce lawyers.
Gary slams out at divorce lawyers for apparently striving to “up the ante” to incur more legal fees.  He wants the divorce process simplified so that it becomes a mathematical equation. 
I am sure that there are divorce lawyers who cynically manipulate separating couples in order to get more fees because, of course, legal rows and court battles are expensive.  But everyone knows that!  Gary Linekar knows that if you walk into steel and chrome in an up market financial district or perfectly preserved Victorian or Georgian buildings, to a large firm with large overheads and a reputation for winning, then you are going to pay and pay dearly for that.  You are paying for the art work, the architect, the upkeep, the large plants and so on and so forth as well as the advice.  That’s not just true of lawyers, it is true of all professionals. There are also many, many family lawyers, and in Ireland I would say that is the majority of them, who behave honestly and with integrity, however, even with such lawyers, like it or not, court battles are expensive even when they are done by people with integrity.    However, there are alternatives, lawyer negotiation, mediation outside the legal system and mediation within the legal system as well as collaborative practice, all of which offered Gary and anyone else wishing to avail of these services, an opportunity to deal with their affairs in an non adversarial manner.  Since in all of these alternative processes lawyers will be involved at some stage, however, at significantly reduced fees, there is a very good chance of the agreement standing up if challenged in court at a later date.  I would find it difficult to believe that Gary was not made aware of these alternatives.  Two points arise, however, the first being, that people generally get the type of representation they are seeking.  If I shop or seek recommendations for rothweiller solicitor/lawyer then that sort of representation comes with an ethos and a price tag and secondly, it takes two to make peace.  If both parties want to settle their case, then they will seek the representation that will ensure that result.  Lawyers are obliged to tell you what they are charging and you know well in advance of going down a particular path what the likely price tag will be and while there can be some leeway as some people demand more time from their lawyers than others, you should still know the ballpark figure and if you don’t that is an issue to take up with the lawyer or change lawyers. It should also be noted that if only one party wants to settle then with the best will in the world on the other side, it cannot happen.  It would seem that in the instant case, they did resolve matters through a DIY website.  Hardly wise in this type of case. 
The other thing that occurs to me is that angry people whose marriages are ending or over are seldom cool, calm and collected.  Mostly, they are angry, upset and in pain.  Anger transference is something that lawyers deal with every day of the week.  It can be really difficult to manage angry clients particularly, when we have no training for this.  Our core training is in adversarial litigation.  We are likely to respond to anger in kind.  Those of us with advanced training in alternative dispute resolution are likely to spot this and try our best to manage it but not always successfully.  Clearly, Gary Linekar should perhaps reflect on his role in the two marital breakdowns, the choices he has made and consider the impact of that, rather than blaming solicitors however, it may be easier and less painful to just blame the solicitors.  Bit like shooting fish in a barrel really and as a sportsman Gary should be up for more of a challenge than that.
It would seem that Mr LInekar went online and found himself online assistance for a DIY divorce costing €400 and he now seems to be suggesting that everyone should avail of this.  If there are no assets and if there are no issues, such assistance might work for some people and can save in costs, however, if there are significant assets, as there probably are in Gary’s case, then there are significant potential problems in doing a DIY.  To protect yourself in such a situation it is very important that both parties make a full financial disclosure to each other on affidavit (sworn document) with vouching documentation attached. Each should have the means and opportunity to raise queries and to ask whatever questions they might have about the disclosure.  Each should have time and opportunity to consult with a lawyer should they wish and to sign an indemnity if they do not.  It doesn’t matter what process you choose, whether it is mediation in any of its forms, negotiation, collaboration or adversarial, then the exchange of financial statements with vouching documentation on affidavit is built in to all these processes.  Not to have exchanged such vouching documentation as well as raising queries and consulting with a lawyer leaves any agreement wide open to challenge in a number of areas going forward.  Another problem which frequently arises with DIY divorces is that having paid the money the other party changes his or her mind half way through and decides that they are not consenting after all and accordingly, that money is entirely wasted.  Like I say for some people they work but the vast majority of people have property of some sort, income needs and children and accordingly, in those situations they are an exceptionally ill-advised choice. 
It is seldom that family lawyers see a case in family law that is entirely issueless.  It is also seldom that family lawyers see a case where there is no anger or bitterness and both parties are working with their higher instincts and clear heads to the fore.  Few people marry without emotion and few exit without emotion.  Where there are families, there are complications.  Families are messy.  Not all issues are to do with finances, they can be, and frequently are, to do with children and extended family, the choices the other party has made or is making, lost opportunities, lost futures, mental health in the broadest sense of both children and parents, resistance to change as well as the usual financial issues, child support, spousal support, family homes, other properties, pensions, life insurance, investments and savings.  It is extremely hard to see how a mathematical equation would deal with this lot.  It is also extremely hard to see how such a mathematical equation would result in anything except gross injustice to some parties.  How would a mathematical equation deal with people who are unable to work for any number of reasons such as age or infirmity? How would an equation handle the parents of a special needs child or any one of many situations which would not conform to a mathematical equation? And what about child abuse, domestic abuse, extended family issues, child mental health difficulties, parental mental health difficulties and so on and so forth?   
Because families are messy and with few exceptions, breakups are painful, there is often a breakdown of trust arising out the separation and an intense toxicity in the communication or lack of it.  This is why many family lawyers have embraced Alternative Dispute Resolution as it affords people an opportunity to work with lawyers acting together rather than against one another and for the parties.  They also have the benefit of a trained collaborative professional who has a professional background in psychotherapy/psychology/counselling and with whose assistance, both with and without the lawyers, the parties can deal with their emotions and communication issues enabling them to deal better with their financial problems.  ADR solicitors feel that this offers clients a space to deal with their sea of emotions while at the same time ensuring that whatever deals they make are scrutinised by lawyers whose role is to ensure continuity for their family albeit in new circumstances, promote inter- partes communication and ensure equity for all given their particular circumstances.  A bit different from a mathematical equation and highly skilled work deserving of reasonable remuneration.

It is my experience that DIY sites are very mixed in the quality of service provided.  Without some knowledge it is hard to gauge the value of what is on offer.  It makes no sense to buy something on bargain basement if it does not meet any need that you have.  I wonder if Mr Linekar knew about the alternative ways of resolving divorce?  We would have been happy to help him here in Cork in exchange for the kind of publicity in favour of collaboration that his ludicrous remarks about resolving divorce by mathematical equations is garnering but it seems that he has trusted his affairs into the hands of a person who charges £400 – you be the Judge!

Thursday, April 28, 2016

The “Equality Referendum”.

My polling card arrived yesterday for what is now universally called the “equality referendum”.  For those of you from elsewhere or living here under a rock i.e., the referendum on the rights of gay people to marry.  I know that I am almost definitely going to vote yes so I suppose many of you may well stop reading at this point.  Those of you who keep up with my blog will wonder at the words “almost definitely”.  I suppose I am a contrarian at heart.  I am most comfortable on the margins and I have to wonder if I am just reflecting that in the “almost definitely”.  The equality referendum looks like a shoe in and that bothers me.  Short of a curve ball at the last minute this looks like a done deal.
There has been remarkably little debate.  Some strong voices against but the ones you would expect i.e., the same ones who come out against women’s rights, and who believe that Dads are a persecuted minority.  I keep thinking that there must be more opposition than seems to be coming through, so where is it?  This is unbelievably easy so far especially when you consider that homosexual activity was still a crime in the 1980s and even now an adult female citizen and her unborn foetus may have to compete for life in certain circumstances.  When did we become so enlightened?
When people are campaigning on an issue that they are directly affected by they will put forward whatever arguments are likely to win favour and alienate as few as possible.  They keep their message simple so as to garner media soundbites. That is to be expected.  A line of reasoning running through the Yes Campaign is, that if you don’t vote yes, you are a homophobe or if not quite that, anti- gay.  Does that stand up to scrutiny?  There is no doubt that when I started this article I thought twice about not declaring where I stood because I felt that I would be branded a homophobe immediately if I took a critical approach, without declaring which side I was on.  That is a bit oppressive and makes me wonder.  It is long established in law that equality does not mean being treated the same.  If everyone was treated in exactly the same manner a great deal of unfairness would result. In this instance however, gay people are being treated unfairly because they do not have the right to marry as things currently stand and it is hard to see how affording them that simple right would result in any unfairness to them per se or any other citizens.  In arguing that the referendum is about equality, the yes campaign is suggesting that members of the LGBT community as well as those who are heterosexual, should be treated equally in terms of the right to marry.  Does that seem right?  I think it does, in so far as what is being asked is that gay people (I am using this as an umbrella term) should have the right to marry if they wish.  I can see no problem with this since as I have said in a previous article it is hard to see how the committed love of two adults wishing to cement their relationship can threaten anyone.    And that is exactly how this referendum is being presented but it is not that simple is it?
Yesterday in the Irish Examiner, always referred to by me and all my generation as the Cork Examiner, Paddy Manning in an article entitled “Why I’ll tick that “nil” box (“nil” with an accent is the Irish for “no”) in a pink glitter pen” argued that as a gay man he would be voting no because “every same sex couple with children has – at least one – parent outside of that family” and treating differently gendered couples equally is either “impossible or an exercise in depriving children of rights.” Mr Manning is of the view that marriage is about children and that no real thought or debate has gone into children’s rights in this context.  He has a point.  A referendum just on the issue of the rights of gay people to marry is not constitutionally necessary in my view.  We are having a referendum because more than the right to marry per se is being considered here if not actually being discussed. What is also under discussion is the right to adopt, the right to avail of a surrogacy service if there is legislation permitting that and in the breakdown of relationships which they do regularly, rights of custody, access etc.  We don’t, to date at any rate, have open adoption so what about the rights of the mother? However, that point is matched in discriminatory terms with those heterosexuals who adopt, in that the birth mothers and fathers have no rights in Ireland in that context either.  So equality of discrimination, perhaps, well it needs to be discussed as an issue – should there be open adoption and if so on what terms? Mind you, since we have a wonderful Adoption Board and no one getting adopted (only the slightest of exaggerations), this argument may well turn out to be academic. Mr Manning says that we are making children into a social experiment and that children in the main do better with a mother and a father.  I am not sure I agree with this, perhaps not least because I am a single parent and I happen to believe that my daughter is doing fine, but because there are many fine single parents all over the western world and there is research which shows that children will thrive in love, stability and reasonable economics more readily than just with a mother and father.  Surrogacy frankly, is far more likely than adoption since as I already indicated adoptions are as rare as hen’s teeth in Ireland now.  Issues arise in surrogacy which are of concern to both heterosexuals and gays such as the rights of the surrogate and the right of children to biological information.
From a legal point of view a family is not defined by whether you have children or not, a couple are a family. As things currently stand a marriage will not be legally annulled simply because the couple can have no children.  Children may be a defining point from a religious perspective but even there the Church will speak of accepting with grace whatever God sends. A couple are no less married in the eyes of the Church because they have no children.  A few years ago we passed a referendum on the rights of children and it is my understanding that they will be afforded a say in matters that directly affect them although I have not seen any enabling legislation as yet.  Frankly, that should be in place before this referendum but that is not to be, maybe because it would broaden the debate?
Mr Manning is concerned about the rights of children where there are competing adult interests and where the referendum has passed.  However, heterosexual relationships break down all the time and there are competing interests to deal with.  Over the years I have dealt with married couples who separated and divorced and who had adopted children and I have also dealt with married couples with children who separated because one or both of them wished to come out as gay.  The complications and heartache are there for heterosexuals in such situations every bit as much and for their children.  Often gay parents suffered terrible discrimination in being deprived of their children and the children of them arising out of such situations.  That can hardly have accorded with the children’s rights. There may be no research to back this up, but I am firmly of the view that children thrive best in openness and clarity and it seems to me that if gay people had the right to marry and all the attendant rights it will be less likely that some might marry women or men simply to have a family and to appear normal with the ensuing problems that brings further down the road.  Personally I think that would be better for everyone, children included.
All Mr Manning’s points are of interest and in one crucial respect I agree with him totally – “Terrible damage is being done to democracy by the enforced unanimity of politicians on this huge change.  No is not homophobia, whatever the activists scream.”  The Yes Campaign is employing the tactics of the extreme right – why are liberals or centrist politicians, let alone the odd slightly left wing politician and groups, adopting these tactics?  I suppose because they work, however, that is hardly a   moral justification?  In the also inaccurately and inappropriately named “Right to Life” referendum (named by the Yes campaign) some decades ago, everyone who was campaigning against was characterised as anti-life and anti-babies. However, that was by people who had a committed very far right agenda.  Only in the years after the passing of the referendum have the nuanced realities and legal arguments of the No Campaign proved almost entirely correct.  The No Campaign (dubbed at the time the Anti Amendment Campaign – how difficult is that as a soundbite, how unsexy compared to the Right to Life) at the time and on the record tried to debate and argue most of what later came through in various cases from “X” onwards.   At the time they were drowned out by simplistic slogans characterising them as anti-life. I am sure you are beginning to see a pattern here and you should remember it. However, there was one crucial difference and that was that the vast majority of the Right to Life people actually believed every word they uttered which made them formidable foes.  There were cynics of course and most of them were politicians who saw a popularity vote in being Right to Life at the time. The whole manner in which the idea of a referendum at that time and on this issue was introduced to the people was entirely craven if not outrightly cynical.  And the passage into the Constitution was and is a legal disaster which can only bring to mind the words of WB Yeats in this celebratory year of his birth  “ Once you attempt legislation on religious grounds, you open the way for every kind of intolerance and religious persecution”.
The politicians, with a few honourable exceptions, now as then are not enlightened, they want to win.  A defeat in this referendum would not be good for their image and a general election is looming.  The youth of our country appears to want this passed.  Politicians wish to court the youth and so index finger to the wind they are Yes to a man and woman.  They do not want a proper debate because it might result in the referendum being lost or tighter or they just might have to be informed on issues about which they know nothing.  Should we expect more from them, of course we should.   That’s why there is a qualification in my Yes vote but I will still vote Yes.

I regret the lack of honesty in the campaign and I can’t help thinking that a cynicism has come into the public discourse that was not there before.  It would take a very brave person under 40 to stand up against headlines such as “Referendum is about how you really feel about Gay People” but for those of us hardened in the Contraceptives Debate, SPUC and Divorce not to mention the decriminalisation of homosexual activity among other worthy campaigns, we recognise these tactics for what they are and are not fooled.  Regardless of how the referendum turns out, I won’t be any happier to vote for any of the so called Yes politicians than I was previously.  With few honourable exceptions I shan’t be judging them on those terms!

Sabotaged by feelings – Family Law?

Family Law, despite its prevalence in the lives of ordinary folk, is still a relatively new independent practice area or study of law, particularly, here in Ireland.  For many years, family law just came in under litigation, which makes sense when you consider we had no real divorce or separation legislation.  A judicial separation (then called Divorce a Mensa et Thora) could only be obtained in very rare circumstances.  It was only in the 1960s,70s and 80s that family law began to develop a body of statutes which opened up the area to become a practice area of its own.  Nonetheless, when I qualified in the 1980s, there were only a handful of practitioners specializing in family law.  Of course, solicitors and barristers in general practised family law but not as a specialization or exclusively.  Alan Shatter was one of the first specialised family law practitioners.  He may not have been the first as such, Blathnaid O’Brolchain (nee Dillon) laid claim to that. He was the first high profile family law practitioner.  Gradually, more people came into the field.  Still, the practise of family law was seen by the rank and file of practitioners as a “woman thing” and frequently, denigrated as such.  Female practitioners of a certain age will recall, as young solicitors, getting stuck with any family law case that came into the office as they attempted to climb the very greasy career ladder.  As a result, a lot of female solicitors and barristers ran a mile from family law perceiving it as a career rut.  Those of us who liked family law were either ball breaking feminists (as family law was widely perceived to be totally biased in favour of women) people who did not like the cut and thrust of real law (generally defined as that practiced by men) or worst of all, people who did not really know the law and stayed in family because it was safe, not real law!  Whether or not Alan Shatter was the first dedicated family lawyer, he was certainly the first to demonstrate that a professional could make a living in family law often to snide and derogatory comment particularly, it seemed, from practitioners who were not at all shy of charging in their own areas. Demonstrating that it was possible to make a living from family law was an important step towards the recognition of family law as a significant professional area.   Alan Shatter also went on to write the first real foundation text book in the area which made a substantial contribution to the establishment of family law as a separate area of study.  Nowadays there are many established family law practitioners particularly in the cities and many text books.
Despite being recognized as a separate area of practice, it seems to me that family law is often taken less seriously than other areas of law and is often taught as a side line interest particularly at a professional level. One has to wonder is this because it is seen as a woman’s area or because it seems hard to make any money at it? The lack of emphasis placed on the study of family law contributes erroneously to the view of many practitioners that it is an area of practice in which they can dabble (i.e., take the odd case here and there), and indeed, an area about which they do not have to be terribly well informed (up to date) in order to work in it effectively. This may be because they feel that no real law is involved or that it is a matter of common sense mainly.   Others perceive it as just like all other litigation.  Solicitors and Barristers who take up the odd family law case will frequently say how much they dislike it, how the cases take on a life of their own and become like a mini rain forest (paper heavy) and how the clients are never happy.  Frequently, they will also recount how they worked extremely hard for an individual and got a good result only to find themselves bad mouthed by the client.  A lot of the bigger practices won’t do family law because they don’t want “unhappy clients”.The first thing that can’t be said often enough is that family law is not like “any other litigation”.  Family law clients are generally traumatised.  They are experiencing an emotional maelstrom, probably completely unlike anything they have experienced before.  So are their children and their relatives.  Equally, Family law is also not simply a matter of common sense.  I am, in the school of Rumpole, always wary of the “common sense” lawyer.  Naturally, some common sense is required but an application of common sense applied to the open wound that is the traumatised family law client, seldom works effectively.  And while there is not a great deal of law there remains the fact that family law frequently involves land and properties of one sort or another often held in various complicated titles, companies, investments with other parties, partnerships, deceased family members and various complications being frequently the stuff or ordinary life made more complicated by the fact of separation or divorce and to which the family lawyer must apply his or herself. The best thing the family lawyer can do to start with is examine the support your client is getting in detail.  Frequently, friends and relatives are acting out their own unresolved conflicts while seemingly “helping” the client. Look out for that.  Look out for the client who is taking advice from everyone everywhere and comes to you with all the various slants so that from day to day you don’t know who you have in front of you.  Look out for the client who has a ghost lawyer second guessing everything you say and do.  This is generally a friend of both parties who cannot be seen to officially act but is actually on one side as opposed to the other or it can be a second cousin twice removed or the wife of a friend of your husband’s or even the conveyancing or office lawyer.  Spotting this type of input from the beginning can save a lot of time and angst on both sides. Clients will frequently resist counselling.  It is important to remember that everyone has family baggage, including you, the family law practitioner. This, frequently unexamined, baggage comes out to play in every family law case, yours, the clients, the client’s relatives, friends etc.  The first step to managing all that is recognising it and the next step is taking a long hard and frequently uncomfortable look at all of that.  Only then will you be able to make a stab at managing it.  It is my experience that many practitioners are unable and unwilling to examine their own baggage and so they have no idea of what might trigger them when it comes to dealing with family law clients.  We try and corral the clients, confine them to legal issues and so forth and the thing that drives so many of us nuts all the time is how often they escape their confines.  When we studied family law, if we did, at a professional level, i.e., as apprentices, we were admonished to remember that we were lawyers and not counsellors.  I think that this advice, probably well intentioned, sounds the wrong note for would be family law practitioners.  It is not possible to deal efficiently with family law if you do not recognize the emotional and social fall out of marriage breakdown on a personal level and for families generally and if you have not explored them in your reflections, reading and study. Most of us will have experienced family conflict growing up and what in our particular families tended to trigger it.  That can result in our having a certain attitudes and reactions when the right buttons are pressed.  The thing about family law is one or other client will definitely press those buttons.  When a client comes in the door they appear with all their baggage and not just a bunch of legal issues and questions.  Most of the strain of trying to deal with family law clients arises from the effort to keep them within the confines of law and I would suggest that much of that strain is unnecessary and of our own making as professionals.  I believe it stems from lack of self awareness, unrealistic expectations of people in trouble, fear of emotions relating probably to the lack of self awareness and a general lack of openness to the exploration of new ways of doing things and new approaches.Family law is not a difficult area of practice because the law is massively complicated.  Over the years there have been tricky areas of family law, for example, at one time the recognition of foreign divorces was very complicated, nullity can also be quite intricate and adoption as are aspects of child care and domestic violence.  The pieces of legislation and case law governing these areas are not particularly difficult to read and digest but yet, I have come across lawyers who have a very hard time coming to grips with some of these matters and I have wondered why that is?  I suspect because more basically, than any other area of law, family law and emotions are intertwined.  Raw emotions and base feelings right down where people live, deep in their psyche.  Pauline Tesler calls this the Primordial Soup which is as good a description as I have come across.  Very few lawyers have the kind of skills required to manage clients at this level or even to recognize where the client is at and refer the client to someone else who could manage or assist them.  It is client management that makes family law one of the most difficult areas of practice and it is the level of client management unique to family law and the skill set required to work in this area that make family law a specialization.When I began working exclusively in family law, I designed an intake form for my new clients.  Its purpose was to provide me with the information I required to draft proceedings for litigation which Alan Shatter liked his solicitors to do for themselves, rather than ask counsel to draft, as is generally the case. I believe that there is huge merit in this approach as drafting proceedings, while not necessary economically productive from a solicitor’s point of view, gives you a command of the information contained in your client’s case and helps you to determine a course of action. My intake form was to ensure that the client would be focussed on the provision of information rather than rambling all over the place.  The client, I thought, would have to concentrate on answering my many “relevant” questions and would, therefore, not tell me things I did not need to know.  As an unadmitted aside, I also thought it would serve, because of the effort for the client to provide the necessary information, to keep emotions in check.  So much for thought!  Truth to tell, the intake form was all about me.  You would have to wonder why I was so anxious to keep all those emotions at bay?  The emotions that I found hardest to manage were anger and despair. Anger perhaps resonated with me in unexamined ways and despair was the most alien to my own emotional personality so I could not get a handle on it.   I think now, it was fear, fear that the consultation would get out of control or that I would not be able to control it, as well as fear of the emotions themselves, that I might be overwhelmed.  I clung to that dictum that we were lawyers and not counsellors with all my might and the stress of my day to day practice was very high.  First of all there was the stress of resisting the client’s need to talk, then there was the stress of trying to keep the emotions in check, theirs and mine, the stress of dealing with colleagues who were just as stressed as I was, the stress of litigation and the stress of trying to manage the court system and the client.  A lot of stress!  And I felt it, I found it hard to cope, smoked like a trooper and got sick.  When I recovered, I took control over my health in a holistic manner and from there I started to examine slowly but surely my working methods and those of my profession.Tying to confine clients to legal issues is not a realistic approach to family law, particularly, when they first appear in your office.  Is our obligation, our duty of care, to our clients in this regard met with by simply having a list of counsellors to whom we refer them? I don’t think so.  It is my experience that most of us inherit that list and we do not personally know any of the people on it.  Equally we are ignorant of different types of psychological practices and what they might offer when we make referrals and finally, we have mostly never availed of the assistance of counsellors or psychologists ourselves and accordingly, have no idea what we are asking of the client when we advise them to attend for counselling or a psychologist. An equally good question is, can we confine our clients to the law and legal matters, once we ensure that they have or will attend a counsellor?   I don’t think our obligation as lawyers or solicitors is met by having a list of counsellors per se.  First of all we need to have met with these people and assessed their value to us as practitioners. How are we to do that if we have no clear idea of what the practice of family law is, not to mention the psychologist and counsellor’s practices, what we are about as family law practitioners and what they are about as psychologists and counsellors and lastly, our client’s holistic needs? I often hear lawyers bemoaning the fact that clients frequently consult with them on areas that do not relate to law or come in unprepared and so forth but we think it is perfectly in order for us to know practically nothing about the practice and different practices of mental health professionals and counsellors. Secondly, the fact that our client has a counsellor does not mean that we can happily confine them to legal issues and let the counsellor handle the emotions.  We will still have emotions coming into the room with us and we will still have to learn to manage them. And once we have the client’s emotions to deal with, we will also have our own.  Counselling will, or should assist the client to manage their emotions but it does not act as a plug.  Finally, we cannot make our clients attend with a counsellor.  Irish people are frequently very reluctant to attend counsellors as they often see counselling as some form of psychiatric assistance.  Of course, if the practitioner has no idea what the counsellor can add to the sum of things, then he or she will have a hard time selling counselling.  If the practitioner has never undertaken any counselling himself or herself he or she may well have unexamined attitudes to counselling per se which will communicate subliminally to the client.  If the practitioner has little or no respect for counselling as a pursuit this will undoubtedly communicate.  I find very few practitioners have any knowledge of counselling, what it involves and how it might or might not assist their practice.  The interesting thing I have discovered in recent years is that counsellors (I use the term broadly to embrace mental health practitioners, counsellors, psychologists etc.,) frequently have equally unexamined attitudes to family law practitioners and that may well be the subject of a whole other article.  And both sides from their lofty positions of complete ignorance of the other does are often entirely prejudiced against the other.  I suspect the idea that they have unexamined prejudices will meet with higher resistance amongst mental health practitioners than lawyers but that is my experience.I have long felt that the teaching of family law at a professional i.e., practice level, has to take a more holistic approach in the interests of both the practitioners and the clients. Not only do we as lawyers have to understand and appreciate what counsellors can add to our practices we also have to learn from the counsellors how we can assist our clients with emotional management and how we can meet our own mental health needs as family law practitioners.  As a young practitioner, one of the most difficult things for me was shutting down the stuff in my head at the end of the day, client stories, client anxieties and my own. The first thing is to recognize that this is a fact for many young practitioners and not something that they should keep to themselves, feeling a little ashamed of not being able to manage and overcome better.  In my early days not only did I not discuss these feelings of being overwhelmed with other practitioners, I would have actively denied them had I been asked. I would like to think we have come some way since then. Counsellors and the counselling world has long recognized the need for management of second hand trauma and they have evolved useful skills and techniques which would be of great assistance to young practitioners. Their knowledge and skills should in my view be incorporated into the teaching at a professional level in the practice of family law but that involves stepping away from the idea that we are not counsellors per se and accepting that while we are not counsellors there is a certain amount of emotional health and management implicit in our practice and that we should not only learn some techniques for the benefit of our clients but for our benefit also.   As a profession we need to place a premium on our own mental health as well as that of our clients for both our own sakes and that of our clients.  Of course, family lawyers who remain in this area of practice with or without the techniques of the counselling world will grow thicker skins as time goes on in any event.  How much natural empathy and our own inner selves are lost by doing this as opposed to learning skills in how to manage?It isn’t just a case of managing emotions so they don’t interfere with the smooth running of our practice.  Emotions have a place in family law.  Burying them is dangerous both for the lawyer and the client.  Managing emotions means acknowledging their place as well as controlling them but not burying them.  In my personal practice, it came as quite a surprise that once I stopped resisting the client’s emotions, I was able to manage my own reactions as well as the client’s with a lot more ease and aplomb. I don’t exactly invite the clients to share their emotions with me but when they surface, as they do, I don’t block them either.  This step has made my practice much easier, that and jettisoning the intake form.  Now, in the initial consultation, I let the client lead for the first half or more depending on the situation and only when the client feels heard do I raise my questions.  I believe that if you don’t listen to the client or more accurately try and hear their story only through your prism, they will resent you without even knowing it.  Into that unhealthy solicitor/client climate, can come unreasoning anger, client badmouthing and client anger transference.  Thinking on this has led me to think about how we teach family law to young lawyers and how much better we might deliver on that.Some thoughts on this are: Family law is an area of law but it is emotional.  If that turns you off, then perhaps the practice of family law is not for you.The outcomes of a family law situation are not going to make anyone “happy”.  If you want “happy clients” then perhaps the practice of family law is not for you.Family law stories will touch you, the practitioner and your own experiences and emotions.  These have the potential to trigger you to react in ways you had not foreseen.  Self- awareness and self- reflection will help you to be a better practitioner and may have benefits in your own personal life.  If you do not wish to engage in any form of self-reflection then perhaps family law is not for you.The practice of family law requires you to be more than just a lawyer. It requires openness, tolerance and understanding as well as knowledge of the law.  If these are not qualities you think you possess or you do not value them as such, then perhaps you should consider practising in another area.Other areas of law may require the lawyer to be primarily a gladiator but there are only a few occasions or areas in family law where gladiatorial skills are the primary requirement of a talented or even competent practitioner. If you have the ability to recognize those times when you see them then you should not worry.  Consider another area if conflict is your meat and drink or your first port of call in all situations.  In family law there is already enough conflict, your job will mainly be to seek resolution not promote dissension.Family law is a speciality.  It should not be lumped in with litigation.  It is not just litigation as is often said.  Family law at court level is conducted differently to civil litigation both in its procedures, the manner in which hearings are conducted and in client management. Recognizing the specialization status of family law will go a long way towards an openness to changing the way we teach family law based on the realities of practice and the needs of family law clients.  Those of us who are family law practitioners are all too familiar with “litigation orientated” sometime family lawyers who employ the methods of running down actions in this area i.e., aggressive and non-engaging until the steps of the court approach.  This is a disastrous approach to family law and a devastating experience for all concerned.We should involve psychologists, counsellors and mediators in the training of young family lawyers both for our benefit and the benefit of the clients.Students should be mentored in the early years of their practice of family law and perhaps in other areas too.  Mentoring would assist greatly with the management of the young practitioners’ emotions and would offer practical guidance on how to manage clients.  It would also promote self- awareness.  This, in turn, would stimulate professional growth.In the course of this article, I have discussed my view that clients should not be asked to compartmentalise their emotions and that we should not attempt to do that for them.  There are many reasons for this but probably the most important one is that family law clients need to heal and part of that involves processing their emotions. Clients who cannot process their emotions cannot move on and clients who cannot move on become clients for far too long.   Clients who stay way too long seldom want to pay for the true cost of that time and effort. Most of them do not or cannot remember the amount of time you spent and the amount of generally unproductive correspondence you entered into on their behalf.  When reminded they still don’t want to value that.  It is my experience that forcing clients into boxes will result in the emotions surfacing at some other time, often a completely inappropriate moment e.g., when you are endeavouring to resolve or settle their case.  When the emotions surface, a client will be flooded and when flooded a client cannot make rational decisions.  At the best of times, clients have a very difficult time settling cases and this is most especially so if they have not dealt with some of the emotional fall out of the marriage breakup.   Factoring this into how you manage a settlement meeting, scheduling and so forth, can often make an enormous difference into client preparedness for settlement.All family law practitioners have the experience of the clients directing anger at them the practitioner.  Most of us recognize that this is just transference but ensuring that new practitioners are ready for this is very important.  Knowing about anger transference is helpful but it does not make it any easier to receive the anger or to manage it.  Recognizing it and learning how to manage it are essential skills for the family lawyer.  Most of us have picked up those skills in the school of hard knocks, experience , however, counsellors and psychologists deal with anger transference all the time and are well used to managing it without alienating the client or leaving themselves open.  We need to master those skills for our practise.As professionals we need to place a value on our own mental wellbeing within our profession.  Our professional life may be about making money but, as we know, it is also about feeling that our life has a purpose, meaning and that what we do is worthwhile.  Wanting to be a master of our profession, being open to new knowledge and skills, as well as constantly striving to be better at what we do is not just the stuff of idealistic youth, it will also ensure our own wellbeing and that of our clients.  The converse is unmanageable stress, cynical unhappiness and possible illness.  In that context learning to manage our second hand trauma is very important.  Sometimes, the stories we hear traumatise us.  What do we do to manage that in our own lives?  I would suggest that the first step is that our profession recognizes the reality of second hand trauma and our exposure as a profession to it.  We might then identify the high risk areas within our profession.  Such recognition would lead logically to an exploration of techniques or ways and means of managing as studies of trauma and its effects.  Few in our profession recognize our exposure as a profession to trauma and what effects that has upon us.  Not having a name for something you are experiencing may lead you to trivialize the experience or deny it completely to the detriment of your health.

I look back on the statements I have heard my colleagues making about family law over the years and the one I find most bizarre, is “They are never happy”.  Of course, they are not happy – who could ever expect that?  Their marriage is over, children are upset, parenting is disrupted and most often everyone’s standard of living has taken a blow – what is there to be happy about?  If you do family law expecting your clients to be happy then your working life is likely to be one long disappointment.  A practitioner in family law derives satisfaction from themselves mainly i.e., from their expertise, handling difficult and stressful issues competently and kindly, acting with integrity and making a reasonable living.  I see all of those things as intertwined.  We work mainly with people in transition from one legal state, i.e., marriage generally or partnership, into another. We need to strive not to add to the damage already done but where possible to shine light on the way forward as families generally remain families whether separated or together.

Monday, February 9, 2015

Love and Marriage ?


Are Europeans dying out as Vladimir Putin suggests and is our headlong rush to oblivion demonstrated by our near consensus endorsement of same sex marriage?  Putin concludes that it is, and accordingly, with a rush of logic to the brain, justifies Russia’s homophobic legislation as the response of a “traditional” society or people with “traditional”, even religious moral values, honed over millennia.  Russia, he says, is entitled to its traditions etc., etc.  Are you as surprised by this?  The Russian leader while not a man noted or associated with religious conviction in this part of the world, did, it seems have a devotedly religious mother.  When reflecting on this, however, it is worth noting that communism as practised in Russia, even in its heyday, was as homophobic as you can get.  “Homosexuality is an imperialist plot” one of my student union comrades from my union days confidently informed me years ago when challenged to explain Russia’s record on homosexuality.  Accordingly, the Russian line has not really changed at all, they have just put it into new clothes - and that is so often the case. 
Readers of my blog will know that I have no difficulty with same sex marriage.  Why ascribe a new institution, civil partnership, as if LGBTs* were a third sex?  It seems that others are now catching up with that notion.  And when we sanction Marriage for same sex couples, as we seem destined to do, will civil partnership still remain on the books as some kind of three quarters option only available to gay couples?  Returning to my blog and paraphrasing myself, why would anyone or any society be threatened by the committed declared love of any couple, gay or otherwise?  Clearly, Russia is!  It is of interest that Russia apparently sees marriage as an institution designed for the procreation of children which is a very conservative, largely religious perspective.  Since that is the prism by which marriage is to be judged, Russia would decidedly have enormous difficulty with endorsing same sex marriage which does not prima facie lead to procreation.  But is that what marriage is, an institution simply designed for the procreation of children?
The failure to procreate has never been an acceptable reason in Irish law to have a marriage declared null and void. There are other reasons to have a marriage declared null and void but the unfortunate and/or accidental failure to procreate is not one of them.  It may be an underlying reason for a divorce but the spouse seeking the divorce will still have the usual marital obligations arising out of such an application which will include division of property and ongoing support if that is considered appropriate.  A married couple is a family is Irish law and not simply a couple with children. 
The declining rates of marriage, and the rising rates of divorce, are something of great concern to many people at the moment, particularly those of a religious or conservative caste of mind.  Commentators tell us that marriage rates are falling alarmingly and it is only a matter of time before marriage will be dead as the proverbial Dodo.  You would have to wonder then why LGBTs are campaigning for the right to marry when so many Heterosexuals are moving rapidly away, we are told, from this tradition?  Is it a case of – we want to be able to choose it because it is our right and we want that choice even though we might never choose it as such?  Are there significant numbers of LGBT people who could not care less about marriage and the right to marry and are remaining silent? Let me say that I completely understand the idea of wanting choices even if you personally don’t agree with those particular choices.  I passed away much of my youth in merry conflict with various powers around the politics of choices for various kinds for women, most of which I would never have made for myself.  However, we have to ask if it is true that heterosexual people are moving away from marriage in their droves and whether or not marriage is in fact, a dying institution? A form of marriage exists in every country and every society that we have ever known or currently exists on the planet.  Over the centuries marriage has changed dramatically and it has adapted to societal shifts of an extreme nature between one century and another.  It has also embraced various customs from one continent to another and yet it survives. Perhaps the institution is only in a state of flux responding to vast cultural changes and it will, once more, adapt?
Despite their rising divorce rates, now standing at about 50%, the US has always seemed to me to be a resoundingly pro-marriage culture.  Forty odd years ago, at a time when European youngsters of a progressive bent were opting to live together, kids in the US got married.  Cohabitation never seemed to be an option for all but a small percentage.  While Americans accepted divorce as part of their culture and had few moral issues with it, they found cohabitation immoral and few accepted it.  In the last two decades this seems to have changed dramatically.  In 2010 American married couples made up 48% of all American households.  Even if you factor in increased life expectancy and how that might impact on single households where a spouse is deceased and immigrants who tend as a rule to be young and single, this statistic reflects a huge cultural change in the US.  By contrast in the 1950s 78% of households were married couples. I, for one, have absolutely no wish to return to the stifling morality of the 1950s, a time of unbridled discrimination against women however this sea change still bears scrutiny.
Over the centuries marriage in our own culture has had to adapt from being an institution that was entirely pro man to one allowing of nearly equal rights for women.  It has had to adapt from being about family arrangements, to being bride and groom centred.  It has adapted from being almost entirely religious to having a large civil and legal component, and from being an institution where the roles of each partner were tightly structured on strict gender guidelines to being one where no such structures exist except by choice.  Where once young people had little or no say as to who they married and when, they now freely undertake to marry partners of their choice.  Not so long ago a woman’s economic security was dependent on being married.  Now women are capable of  economic independence for the most part, if not entirely as yet. Once the family of the bride paid almost entirely for the wedding festivities, now it is commonplace for the couple to finance their own wedding and so on.  Indeed in almost every country and in every age, marriage has proved to be a very durable and adaptable institution.  In our time and in our culture, we place huge significance on the freedom that people have to choose their own partners and to marry or not.  We consider it almost incomprehensible that people should be coerced or manipulated in any way into this institution and we are absolutely and rightly horrified at the idea of any force being involved.  However, it is also true that families and friends contrive and connive to ensure that people meet one another and even without that, our pool of potential partners for the most part is naturally circumscribed by our location, class background, educational and job opportunities.  And not only do families and friends manoeuvre the agenda of freedom when it comes to marriage partners, they actively encourage and conspire to pressure their relatives of a certain age into marriage.  And so, I am not entirely sure how broad sweeping our freedom of choice is in reality?  We also are firmly of the view that couples who marry should be able to do so while not conforming to gender specific roles. Again I think that the reality of this and the theory may not be as close together as we would assume at first glance.  How non-gender specific the roles played by men and women are in the marriage will often come down to how the husband in particular was raised by his own family, how his parents’ marriage was played out in front of him as a child and how strong the wife is in her resolve to retain her independence often in the teeth of the husband’s decided opposition and indeed, the opposition of his family, relatives and friends. This situation will be tested at its strongest when the first child is born or if one party is asked to move to another location as part of his or her career.  In my experience these things test out the reality of gender neutrality and generally are played out in favour of the husband unless the woman was always the serious earner of the couple from day one.  And so while marriage as an institution has apparently adapted to huge changes in our cultural approach to marriage, it may be that on examination those changes are not as seismic as they appear on the surface. A far greater change, both for good and ill may well be the move away from extended family situations into nuclear family structures and furthermore, the move away from rural communities into large urban structures. These changes have been ongoing for the past two to three centuries. 
Like many social issues, discussion on marriage tends to reflect the religious and political standpoints of those who are doing the discussing.  Many feel that marriage is threatened by feminism and by that they mean career minded, economically independent professional women.  At first glance, it would seem a reasonable assumption that women with those qualities were unlikely to orientate themselves to marriage.   However, career minded men would invariably marry so why would women be any different?  Human being seek love and companionship.  Such a woman would be unlikely to define herself by whether she was married or not and she would hardly seek marriage for financial security but is that any reason to assume that marriage would hold no attraction for her? Is that all marriage holds for women, status and economic security? A woman might just as readily seek love and companionship for exactly the same reasons that a man would to settle down and establish a secure base.  However, if you have two professional, career orientated people marrying each other does this not inevitably lead to the sort of clashes that give rise to divorce?  Career women are often perceived as threatening to men.  Implicit in the idea that professional economically independent women are not marriage material, is their perceived lack of interest in the traditional roles of marriage i.e., home-maker and child minder. People making these arguments tend to have very gender specific roles in mind augmented very often by a limited view of women.  One of the most interesting pieces of US based research that I have come across however, shows that while marriage rates are falling generally, high earning females, defined as anyone earning more than €100K per annum, have increased rates of marriage rising from 58% in 1980 to 64% in 2009.  In addition, divorces rates are low comparatively for this group.  In summary college educated women and men marry later but they seem to have better staying power when they do commit to marriage.  Contrary to assumptions, college educated, career orientated men and women are bucking the trend. This deserves closer examination.
One of the greatest challenges faced in modern marriage in my view, is that of unrealistic expectations.  This seems to be an affliction which women are more prone to than men, particularly young women.  Despite all the advances made by women, a lot of them are still invested in the myth of true romance and happy ever after.  In fairness to girls and women these fairy stories are pushed on them relentlessly.  Love songs of the most syrupy quality are everywhere.  Romantic comedies, romance movies are usually grounded on wildly unrealistic premises which is all well and good if we understand them on those terms.  Hallmark created festivals such as Valentine’s Day and Christmas to a large extent push romance, glitter and fairy stories in the most unmerciful fashion because the buy in from young women has enormous monetary spinoffs for huge industries.  It is a continual fest of never ending, vomit inducing bilge.  A woman with a career, educated, real economic clout and an independent caste of mind is unlikely to swallow the fairy story and being a bit older probably knows what she is doing when she commits to something.  She will not get married until she is ready and, barring unfortunate accidents, will only have children when she is in an economic and satisfactory place in her career to do so.  I believe that this may account for the surprising statistics attributable to such women as shown above.   All too frequently women who are dissatisfied with their lives for whatever reason will invest their happiness solely in their husband.  Another person can never make you happy and it is an unfair burden to place on one person.   Marriages, good and bad, can certainly contribute to your happiness or unhappiness but they are a component part of a full life, not the whole of it.  In short professional women are less likely to have unrealistic expectations of marriage.  
Another comment one often hears or reads is that cohabitation is the death of marriage.  Cohabitation numbers are certainly on the rise.  As a practice it is far more acceptable now than it was 50 years ago.  Does this mean that cohabitation is the new marriage so to speak?  The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 is a somewhat belated recognition of the reality of cohabitation as a common practice.   My opposition to this piece of legislation in so far as it pertains to cohabitation which I have argued elsewhere, is neither here nor there, as the act is now in being.  Two thirds of couples who marry today are already living together which would suggest that cohabitation as such is not replacing marriage rather it is being viewed by couples as a step on the way to marriage.  In addition, since 1996, research would indicate that cohabitation before marriage is not associated with an increased risk of divorce.   Perhaps the changes in sexual mores in the past 50 years whereby the sexual availability of a woman to a man is not perceived by that man as mitigating against having love and respect for her, serves to explain this change?  Intimate sexual relationships are now placed it would seem on a more equal footing between men and women and one has to be grateful for that!
Arising out of the passing of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, it could be suggested that since cohabitation is now subject to the long arm of the law it will surely replace marriage.  In fact that argument makes no sense since those not wishing to marry and opting for cohabitation would hardly have wanted to come under the law. I have no doubt that for many of them even now it will come as an unwelcome surprise if and when they discover that they have whether they like it or not. This is the problem with the legislation in fact. It gives rights to people who were not looking for them and contracted on a different basis.  In past centuries and up to the latter part of the last century, marriage, as an institution, was blatantly unfair to women.  Women had no right to hold property independently when they married, in the event of a breakdown of the relationship they seldom had any rights to their children, within the marriage itself they had no physical integrity and often were unable to hold down employment as married women to name but some of the indignities they suffered.  As the 20th Century feminist movement gained momentum, it focused on marriage to a great extent and accordingly, as a result of sustained pressure and economic changes, the position of women shifted dramatically within marriage.  From the point of view of dissolution which is generally the yardstick by which rights in this area are determined, marriage is a much more legally and financially secure institution now for women than cohabitation even allowing for the above named act.  Cohabitation viewed from this perspective does not present as an attractive alternative to marriage.  For this reason it is very unlikely that one will replace the other. 
Conservatives and those of a religious demeanour frequently assert that marriage provides a secure base for the raising of children, far more secure than any of the alternatives.  If children’s wellbeing is dependent on their being raised within a marriage, then divorce would have to be the worst possible outcome for children.  It is certainly true to say that the public nature of a marriage and the legal intricacies make it a stronger commitment and a tie than the alternatives.  However, an unhappy marriage is surely not going to be more secure for a child than raising children in a happy cohabitation.  I do not believe that divorce is the worst possible outcome for children.  I am fully convinced from my reading and it appears that the weight of research is with me,  that for children being in the middle of ongoing conflict between their parents whether within marriage or outside it, is the worst possible outcome for them. When conservatives argue in this context that marriage is the best environment for the raising of children, we can reasonably suppose that is so because the children are raised by a man and a woman since such people often oppose same sex marriage and the adoption of children by gay people.  If, as I read recently, all children deserve to be raised by a father and a mother then what do we say about the whole generations of children raised by single parents arising out of wars for the first half of the last century – were they all dysfunctional as a result?   Children, in my opinion, will thrive if raised by secure, mature, loving people whether those people are married or not, heterosexual or gay, single or in a relationship. 
Will marriage in the West survive the 21st Century?  As an institution marriage has changed dramatically over the years.  When we think about it now, we tend to only think about it in terms of recent history i.e., over the last 100 years or so.  Marriage viewed over centuries and examined globally, yields a very different picture and one which leads to the likely conclusion that marriage as an institution has shown itself very capable of adaptation and rumours of its demise are greatly exaggerated.
Marriage, at its best, is the committed, long term, relationship of a loving supportive couple who agree to build a life together and to stick together through all the ups and downs implicit in that.  I do think it can be distinguished from cohabitation in most cases by the strength and nature of that commitment.  In so far as marriage as an institution is at the moment going through a rough patch seen from one perspective and being redefined seen from another, I think that commitment is the key word to interpreting what is happening. The breakdown rate for first time cohabitees after 5 years and the breakdown rate for first marriages after 5 years is 49% to 20% respectively and after 10 years 62% and 33% respectively.   It seems to me that commitment and modern life are an ill fit or at least a difficult combination to make work.  Modern history has seen the growth of cities, in a hitherto unheard of manner, and all that means for our ways of living as compared to previous generations. There are more middle class, travelled and educated people now in the West than ever before in our history.  Large numbers of women have real economic choice in a way never before seen.  We live longer than previous generations and the figures for death in childbirth are very low.  All this impacts on every aspect of our lives and of course, marriage is part of that and is, therefore, affected.  Looking at life span alone, marriages now can potentially last far longer than in previous centuries.  Looking at life style alone, the nuclear family is now entirely the norm as opposed to the extended family.  This changes the nature of the true meaning of life-long commitment as it was previously understood.
I read recently that our world today is drunk on comfort – the ultimate ‘because I am worth it’ generation.  Uniquely from a historical perspective these circumstances have pertained for several generations in the West.   The writer of that article was strongly of the view that our seeming inability to commit was largely because we could not put up with any discomfort.  There is no such thing as a relationship, or indeed a life, into which no discomfort ever comes.  For most of recorded history, we have struggled to survive, poverty and diseases were frequent, life spans often short and in addition we had wars, famines and plagues. Existence was often uncomfortable and few if any would have expected otherwise.  That being the norm, we were conditioned to put up with things with more endurance and fortitude.  I am not advocating a return to pestilence and plague nor am I advocating the “you have made your bed” school of approach to marriage.    There is a difference between intelligent, loving, perseverance in the face of adversity and the kind of despair that must have been the lot of many living in relationships which were deeply unhappy and often abusive in the past.  Human history being what it is our present degree of comfort is likely to be transient, something will arise to make us shift perspective.   As is so often the case when faced with cataclysmic events our world view changes and the truly important parts of our lives, what we value, will once more become the object of our focus.  If the current changing patterns around marriage and intimate relationships force us to reflect as a society on what we mean by love in all its forms then our current seeming confusion and uncertainty will have been worth it but sadly I think that society as a whole only shifts in response to much larger events than gentle declines.  We have seen a little bit of that in recent years in Ireland.  Having very little money to spend has brought about some very welcome changes in our values.    One small example in the context of marriage is the number of couples who now exchange their vows in a low key tasteful manner as opposed to the vulgar excesses of the boom times.  And of course, fashion responds to circumstance, and the more trendy weddings are now low key intimate affairs. 

For my part, I believe that to love another human being through thick and thin, to honour them and that love and to commit with every fibre of your being is the greatest endeavour to which any of us can aspire.  However, I also believe in the extraordinary nobility of all kinds of love, the love of children for their parents and parents for their children, one adult for another whether of the same sex or opposite sex, the love of friends and so on.  All kinds of love requires commitment,   perseverance and the strength to abide and all deserve to be celebrated and honoured.  For almost 50 years now we have behaved as if there was only one kind of love, sexual love and we have frequently ridiculed and derided all other kinds of love.  Our obsession with sexuality has meant that platonic friendships between men and women have become nearly impossible.  Very young teenagers are exposed to sexuality and forced into the dating game at ludicrously young ages.  Our obsession with sexuality impoverishes our existence, in that the nobility and sacrifice implicit in any kind of real love is unexamined by all but philosophers and the nature of friendship undermined.  It may be too early to forecast green shoots where this is concerned but I was greatly heartened to view the movie Maleficent recently (quite by accident, I hasten to add lest you imagine I am in my dotage) and I was glad I did, since the movie completely rubbished the idea of love as being possible with a prince who had known the princess for 5 minutes and therefore, “true loves’ kiss” was the love, sorrow and regret of the bad fairy, Maleficent for what she had done in cursing the princess as a baby but now knowing her as a person and the expression of that love and sorrow in a kiss.    Speaking about this to my daughter she stated that Frozen did something similar – is it possible there is a trend?