Irish-U.S. family law explained
If the left-behind parent’s Hague application fails, he or she faces the prospect of custody proceedings in Ireland, most probably governed by Irish family law.
Few Irish Americans could remain unaware of the fundamental changes that have taken place in Irish family law over the past 10 to 15 years. The 1995 Peoples’ Referendum lifted the constitutional ban on divorce. The resulting Family Law (Divorce) Act came into effect in 1997.
Unlike New York, the divorce system in Ireland is a “no-fault” process. In New York, a spouse must allege "fault" (such as adultery or cruelty), on the part of his or her spouse as a prerequisite for obtaining a judgment of divorce. The sole exception to this is the so-called "conversion divorce” where the husband and wife have lived separate and apart pursuant to a written separation agreement or decree for a period of at least one year.
However, the Irish Legislature did not make divorce a swift option. All applicants for divorce in Ireland must prove that the spouses have lived apart for at least four out of the five years prior to the application. The judge must also be satisfied that there is no reasonable prospect of reconciliation.
The law relating to property distribution and maintenance (also known as alimony) is fairly similar to the laws of New York, with a notable exception. Although in New York, there has to be allegations of marital fault (except for the conversion divorce), in order to be entitled to a divorce, the courts cannot take marital misconduct into account in determining the financial provisions unless the conduct rises to a highly egregious level, such as attempted murder.
The Irish judiciary, however, may pass moral judgment because they are specifically empowered to take fault into account in deciding who gets what.
Child custody in New York involves physical and legal custody, and such determinations are made on the basis of the “best interests of the child.”
In Ireland, all married parents are automatically legal custodians of their children (known as guardianship), and this cannot be taken away as a result of separation or divorce.
Physical custodial decisions in Ireland are determined on the basis of the “best welfare of the child.” Unlike New York, this is specifically defined under Irish law to include the child’s best religious and moral welfare.
Divorce legislation was first enacted in New York in 1787. More than 200 years would go by before it took root in Ireland.
Last year, about 5,000 people applied for a decree of divorce in Ireland, but the divorce rates in Ireland remain the lowest in Europe.
Both the New York and Irish systems have room for reform, but each is moving towards greater promotion of mediation and collaborative divorce processes, to give people the option of trying to keep responsibility for family decisions in their own hands.