Pre-nups urged to avoid legal battles over child custody

PRE-NUPTIAL agreements should become the norm to avoid heated courtroom battles over access rights and custody to children, according to researchers from Trinity College Dublin.

A new study into post- separation parenting found that while many agreements made between separated parents in the circuit court are done with little acrimony, many estranged couples still return to the courts to sort out smaller details such as access during holidays.

The report, A Study of Separation and Divorce Agreements made in the Family Law Circuit Courts of Ireland and their Implications for Parent-Child Contact and Family Lives, looked at 134 cases relating to separation, divorce, maintenance, custody and accesswhich came before the circuit court in 2007.

It found that in the majority of cases, joint custody was granted and “liberal access” was agreed.

In 70 out of 87 divorce and separation cases studied, joint custody was granted.

Among the 63 home- owners, 33 mothers stayed in the family home versus seven fathers. About half of those mothers were given the family home in a compensatory package in lieu of maintenance or because the father left the family.

In 14 cases the mother bought out the father’s share of the home, and in six cases the father bought out the mother’s share.

There was only one case where the father kept the family home, and that was because the mother had deserted the family, while three mothers were permitted to reside in the family home for as long as their children were dependent.

Where tenancy of a council house was the issue, the mother was granted tenancy in seven cases.

However, spousal maintenance in the main was rare, although child maintenance rates were better. In the 87 cases child maintenance was a feature in 54 instances, although the amounts varied from €140 a month to €3,000 a month.

There is currently no standard recommended rate for child maintenance.

In 63 cases the primary residence of dependent children was with the mother, while fathers were residential parents in six cases.

When it came to access, the courts were often relied on to sort out issues as they arose, such as parental access, holiday access and one parent remarrying.

In many cases, supervised access was utilised, often involving grandparents.

The lack of a “clear-cut divorce”, meaning couples must be separated for four years before a divorce can be granted, was actually beneficial for the well-being of children, according to the report.

Dr Evelyn Mahon of the School of Social Work and Social Policy at Trinity College Dublin, who conducted the study with Elena More, said people here were becoming “more litigious” but that the courts did focus on the needs of children.

“The courts are used extensively by people in Ireland,” she said. “I would think that pre-nuptial agreements are a very good idea. There is an implicit contract [in marriage] and it can unfold disastrously, in some cases, especially for women.

“I think it should be quite standardised. There is even a sense where it is a time of reflection [and] it would be beneficial.”

The study was commissioned by the Office of the Minister for Children.

In 2007, when the information was compiled, there were 3,658 divorces and 1,167 separations.

However, there is anecdotal evidence that with the recession, negative equity and increased job losses, the divorce rate has slowed.

Dr Mahon said there should be a new focus in the next census on the make-up of families around the country, instead of simply looking at “households”.

She said there was a need to look at “relational families” to build a clearer picture of how children and parents fare when marriage has broken down.

* A copy of the study is available in the publication section of www.omc.gov.ie

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