By Dr Roisin O’Shea, 13 May 2020
For the first time, Irish divorces were granted online last week, breaking new ground in terms of Irish legal history. As reported by Shane Phelan, Legal Affairs Editor for the Irish Independent (May 9th), three divorces were granted where everything had been agreed between the parties beforehand and the case came before the virtual court “on consent”, that is, the parties were in agreement having worked out all issues and there were no contested matters. This meant that all that was required were the simple formalities. Each party accessed the virtual court via Video link, and swore on a ‘Bible’ before identifying documents submitted and providing the oral evidence required so the judge could hear that the former couple were “living apart” for the required period and there was no prospect of reconciliation.
The use of virtual courts is set to continue and will expand in the coming months and where former couples can come to agreement with the assistance of a mediator, setting out what is agreed in a mediated agreement, that agreement can be “ruled” by the court as the basis for a consent divorce. Experienced mediators can quickly and cost-effectively assist the parties through online platforms like Zoom or GotoMeeting to deal with the assets of the marriage, including the family home, any debts of the marriage and financial arrangements where there are children.
The Mediation Act 2017 provides that where former couples intend to have a legally binding mediated agreement, they can now do so, (see section 11 (1)(b) of the Act). The mediator will ask both parties to receive legal advice before signing an agreement intended to be legally binding, which can be provided to their solicitors via email, and the mediator can then arrange for any agreement to be signed online using eSignature platforms such as DocuSign.
The good news is that the expansion of virtual courts will be most suitable where litigation is already underway and the parties work out an agreement with the assistance of a mediator, including agreements dealing with parenting (access) and maintenance matters. Mediation can be tried at any time, even where litigation has already begun, and right up to the moment a judge makes a final determination. There is a huge back-log of cases as a result of the Covid-19 restrictions, so now more than ever it makes sense for parties to choose mediation and try and come to agreement, and where they do that mediated agreement can quickly & easily go back before the court for “ruling” if required.