Irish divorce laws in a social policy
vacuum - what can we learn from the
experiences of other jurisdictions?
Dr Louise Crowley
Faculty of Law
University College Cork
UL 12 October 2010
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Seminar Overview – Part I
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History of Irish regulation of marital breakdown
Reluctance to recognise or regulate
Dearth of policy-led law-making
Overly cautious divorce laws, lacking in direction
Consequential freedoms and failings
Need for indentified principles and purposes
Look to experiences of other jurisdictions
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Seminar Overview - Part 2
• Value of comparative study
• Importance in context of law reform
• Varying regulatory approaches on rules v discretion
continuum
• California
– Rule based governance
• New Zealand
– Discretion shaped by rules; principles and purposes
• Scotland
– Rules as starting point; definite policy-based provisions
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Significance of Policy Objectives
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Are they pre-identifiable?
Limits the application of the law
Power is retained by the legislature
Allows for mix of rules v discretion
Any residual judicial power to create law?
Significance of means of regulation?
Process versus Policy
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Ireland - History of regulating the family
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State Regulation v Private Ordering
Importance of State supervisory role
Impact of cultural and religious norms
Elevated status of marital family above all else
Reluctance to intervene in family autonomy
Judicial protection of marital family
Gender specific roles and expectations
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Absence of debate and research
• Statistics only available on those before the
courts or those relying upon state support
• Lack of comprehensive statistics on marital
breakdown
• 1970’s; dep homemakers – only 1 in 15 working
• 1979 census - 8,000 separated/divorced
• 2006 census - 166,797 separated/divorced
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Slow progress in developing remedies
• 1967 Informal Oireachtas Committee on the
Constitution
• Law Reform Commission Report 1983
• 1985 Report of the Joint Oireachtas Committee
on Marital Breakdown
• 1986 referendum on divorce
• Judicial Separation and Family Law Reform Act
1989
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IRELAND
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1992 Govt White Paper
1995 Referendum of the people
Emphasis upon protecting marriage
3 focuses of the debate:
– Fault based divorce
– Right to remarry
– Rejection of Catholic Church?
• Economic issues remained very secondary
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Family Law (Divorce) Act 1996
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Aim of proper provision in the circumstances
No identified policy aims
No prioritisation of objectives
Difficult to gauge purpose of asset distribution
– Need v compensation v equality?
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IRELAND – REGULATORY APPROACH
• Far reaching judicial powers
• Avoidance of statutory limitations
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Lack of statutory definitions
Infinite right to apply
Open-ended judicial decision-making powers
Infinite right to apply to vary
• Vague legislative terms
– “have regard to”
– “interests of justice”
• Rejection of yardsticks – provision not division
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Judicial response to Divorce Act
• Confirmed the absence of any notion of family
resources
• Goal is to secure a just resolution in the
circumstances
• Matter for trial judge to determine relevant factors
• Inconsistency in approach is highly evident
• Lack of obligation to account or explain
• Reluctance to develop policy
• Compounded by in camera hearings/rulings
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Unclear status of private arrangements
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Separation agreements
s20(5) – “have regard to”
Lack of debate re value of negotiated settlement
Varying judicial approaches to autonomous
arrangements
• Pre-nuptial agreements – still uncertain
• Draft legislation ready since April 2007
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1998 Commission on the Family
“lack of coherence and clarity of objectives in
relation to family policy should be rectified
…to make role of state more effective”
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Lessons from other jurisdictions
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Divorce as a long-standing remedy elsewhere
Tried, tested and amended!
Capacity to assess impact of various processes
Development of policies where discretion exists
Never entirely rule-based in common law
jurisdictions
• Yet strict governance of judicial discretion is
typical
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CALIFORNIA
• Divorce – long-standing remedy
• History of varying approaches
• Emphasis on fault - Protection of ‘innocent’ party
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Rule based regulation
Legislature as lawmaker; Judiciary as enforcer
Very definite approach to process and policy
Democratic, certain and fair?
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RULE BASED GOVERNANCE (CA)
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Unambiguous rules
Equal division of marital property
Definition/classification of marital property
Pre-determined by legislature
Capacity to negotiate alternative arrangement
but fall-back position is made very clear
• Marriage as partnership
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JUDICIAL DISCRETION (CA)
• Limited scope for unequal division
• Remains within confines of legislation
• Us of “just and equitable” principles
– E.g. re non sale of family home
• Does require subjective adjudication
• Proof of limitations of absolute rules
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WHY CHOOSE RULES? (CA)
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Pre 1970 – “just” division
Governor’s Comm 1966 – pro discretionary justice
Family Law Act 1970 - Rule of equal division
Pushed by Equal Rights movement
Notion that equal rights = equality
“Cornerstone of the contemporary law of marital
property” (Frantz/Dagan)
• Goal of equal distribution (McRae)
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WHY CHOOSE EQUAL DIVISION? (CA)
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Absolutist approach to equality
Context – gender equality as civil right
Rejection of compensatory based model
Avoided homemaker v breadwinner debate
Fairness and consistency
Certainty – negotiation process
No valuation of individual contributions
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Equal division = Equality? (CA)
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Automatic equalisation of parties
Marriage as a partnership
Rights arising from fact of marriage
Not a compensatory nor needs-based model
Failure to recognise income and career gaps
Work of Weitzman; Kornhauser; Singer
Decline in income and living standards
See Oldham, McKeever/Wolfinger
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Spousal Support (CA)
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Separate treatment – discretionary based
Subjectively decided – addresses issue of need
“just and reasonable result” (Cheriton)
Subject to identified statutory factors
Discretion before rules
Favours needs based adjudication
Unsurprising in light of limitations of equal
division rule but different policy approach
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NEW ZEALAND
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Rules v Discretion
Central position on rules v discretion continuum
Varying statutory approaches evident
Radical shift from discretion to rules
Importance of legislative presumptions
Weaknesses of equal division recognised
Incorporation of principles of compensation
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PRE – 1976
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(NZ)
Broad based judicial powers
Discretionary based distribution
Based upon judicial freedoms
Lack of legislative guidance
Inability to impose policy directions and control
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1976 Amendments (NZ)
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Matrimonial Property Act 1976
“essentially rule based”
Presumption of equal division as starting point
Regarded as fairest outcome
Mismatched policy and regulation
Failure to rebalance inequalities
Incapacity to award future assets/earnings
No judicial scope for law/policy reform
Equality in name only (Miles)
Royal Commission on Social Policy 1988
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2001 Amendments (NZ)
• Property (Relationship) Act 1976
• Two-tiered approach
• Presumption of equal division retained reflecting
partnership model
• Judicial power to avoid to achieve justice
• Additional statutory power to divide future earnings
• Direct legislative guidance and direction
• Stated principles and purposes
• Significance of individual circumstances
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Identified purposes (NZ)
• 3 purposes expressly identified
(a) to reform the law relating to the property of married couples
and civil union couples, and of couples who live together in a
de facto relationship:
(b) to recognise the equal contribution of husband and wife to
the marriage partnership, of civil union partners to the civil
union, and of de facto partners to the de facto relationship
partnership:
(c) to provide for a just division of the relationship property
between the spouses or partners when their relationship ends
by separation or death, and in certain other circumstances,
while taking account of the interests of any children of the
marriage or children of the civil union or children of the de
facto relationship.
– Provides end-goal for the court
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Identified principles (NZ)
4 principles to guide the achievement of the purpose of the Act:
(a) the principle that men and women have equal status and their equality
should be maintained and enhanced:
(b) the principle that all forms of contribution to the marriage partnership, civil
union, or the de facto relationship partnership, are treated as equal:
(c) the principle that a just division of relationship property has regard to the
economic advantages or disadvantages to the spouses or partners arising
from their marriage, civil union, or de facto relationship or from the ending
of their marriage, civil union, or de facto relationship:
(d) the principle that questions arising under this Act about relationship
property should be resolved as inexpensively, simply, and speedily as is
consistent with justice.”
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S.15 – Economic Disparity (NZ)
• Discretionary based
• Proof of significant post-divorce economic disparity
– “leap into the dark for NZ law” (Atkin)
• Consequence of effects of marital roles
• Judicially regarded as “remedial section”
• Enables court achieve fairer, more equal outcomes in
a real sense (Miles)
• Not means of circumventing equal division
• “remedial section” Smith v Smith per Murfitt J
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Evidence of legislative policy
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Law as a social tool
Guides judiciary as to purpose of laws
End-goal identified for the presiding judge
Judicial accountability
Explanation for reasoning
Scope for real equality (and consistency?)
Facilitates bargaining
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Treatment of homemaker (NZ)
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Changing laws and purpose
From Needs to Equality
Modern egalitarian view of marriage
Entitlement based need coupled with
compensatory driven entitlements
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Regulatory approach (NZ)
• Statutory rules enforced with discretion
• Policy-based structure
• Judicial discretion operates within identified
and structured policy
• Statutory tools – principles and policies
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SCOTLAND
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Mixed historical approach
Significant consultation and debate
Role of the Law Reform Commission
Family Law (Scotland) Act 1985
Underlying statutory presumptions &
principles
• Guidance for judicial discretion
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Identified policy objectives
Five statutory principles [section 9(1)(a)-(e)]
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Fair sharing of matrimonial property
Fair recognition of contributions or disadvantage
Fair sharing of economic burden of childcare
Fair provision for adjustment to independence
Relief of grave financial hardship
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Financial Realities
• Fair sharing is presumed to be equal sharing
• Capacity of the parties to meet the proposed
orders
• Importance of
– financial resources
– financial capacity of the parties
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Factors to be considered by the courts
• Section 11(2)
– Economic (dis)advantages incurred by parties
– Correcting of such imbalances
• Section 11(3) re childcare burden – 8 factors
• Section 11(4) re financial position of claimant–5 factors
• Section 11(5) re serious financial hardship – 5 factors
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JUDICIAL ACCOUNTABILITY (SCOT)
• Balance of constraint v necessary judicial
scope for particular facts
• No longer unfettered judicial discretion
• Subject to statutory limitations
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SPOUSAL SUPPORT (SCOTLAND)
• 3 year statutory limit
• Harsh but definite position adopted
• Very limited scope for manoeuvre
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Judicially created
Legislative control over financial clean break
Reflects considered policy choice
Not a matter for the courts
• Residual capacity to relieve grave financial
hardship
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Lessons to be learned
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Rules v discretion
Capacity for effective input from legislature
Impact of identified, debated policy objectives
Considered social principles and end-goals
Retention of residual judicial role
Democratic law making
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Irish Reform
• Comparative study highlights the importance of
OUTCOME
• Tools are almost of secondary importance
• Value of commencing with legislative direction
• Need for social policy debate
• Consider role of family and impact of divorce on
society and family members
• What outcomes are desirable?
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Irish Reform – where to now?
• Need for empirical research
• Identify impact of current regulatory approach
• Reform of existing approach
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Identify social aims
Create principle driven judicial powers
Retain judicial scope for individualisation
Eliminate social policy vacuum
• Incorporate outcomes into regulatory process
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