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Abstract
This article presents a historical overview of the regulation of the family under Irish law and focuses in particular upon the deep-rooted resistance to the remedy of divorce. In this context, it will demonstrate the elevated position of the marital family under Irish law and trace the attempts to recognise and provide for parties to a broken marriage, culminating in the 1995 removal of the Constitutional prohibition on the dissolution of marriage. In the second part, the article will critically analyse the regulatory structure which now provides for divorce under Irish law and will identify the detrimental effect of a failure to consider and identify the underlying policy aims of this radical shift in family law regulation.
Notes
1. In McGee v. Ireland [1974] I.R. 284 the Supreme Court identified an unenumerated constitutional right to privacy but confined such a right to persons who were party to a marriage. Similarly, Walsh J in State (Nichalou) v. An Bord Uchtála and the A.G [1996] I.R. 567 confirmed that the rights and duties of the family do not extend to the non-marital family. In WO'R v. EH and An Bord Uchtála [1996] 2 I.R. 248, the court confirmed that the de facto family, in this case the unmarried parents of a child, is not recognised as deserving of protection under the Constitution. Very recently, the Supreme Court in McD (J) v. L(P) and M(B) [2009] I.E.S.C. 81 confirmed that the concept of a de facto family does not exist under Irish law and rejected a lower court ruling that a lesbian couple with custody of a child could be regarded as a family unit capable of asserting rights under the Constitution.
2. The Preamble to the Constitution commences as follows:- “In the Name of the Most Holy Trinity, from whom all authority and to Whom, as our final end, all actions both of men and States must be referred…”
3. Legal protection and recognition of the rights of cohabitees and legal facilitation and regulation of the registration of civil partnerships as now exists under the recently enacted Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
4. The remedy of divorce a mensa et thoro was carried over from the Ecclesiastical courts and was available on limited grounds; adultery, cruelty and unnatural practices. The jurisdiction for this remedy, originating in the Matrimonial Causes (Ireland) Act 1879, passed to the High Court of Ireland by virtue of section 17 of the Courts of Justice Act 1924.
5. Interestingly the recommendation of the majority of the Commission was that such property transfer orders should only be made with the consent of the parties. This aspect of the proposal has never formed part of the governing law for separation or divorce under Irish law.
6. The Committee was established in July 1983 “to consider the protection of marriage and of family life, and to examine the problems which follow the breakdown of marriage, and to report to the Houses of the Oireachtas thereon.” The Report of the Committee was published on 27 March 1985.
7. See further James C.P. (Citation1987); Binchy W. (Citation1984),and Ward P. (1993). James notes at 195, 196 that many of the essential financial issues, including pension and succession rights were “not worked out until the very eve of the Referendum”.
8. The illegitimate status previously accorded to children born outside wedlock was eliminated by the enactment of the Status of Children Act 1987. Whilst the position of co-habitees was largely unregulated under Irish law, co-habitees were later afforded protections by the Domestic Violence Act 1996, subject to certain limiting conditions and pre-requisites. More recently the Government has enacted the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 which has introduced the right for a couple to register as a civil partnership and also created statutory rights and remedies for cohabiting couples. See further Mee J. (Citation2009).
9. Judicial Separation replaced the more complicated procedure attaching to an application for a decree of divorce a mensa et thoro.
10. Whilst noting the advantages of a clean break system of divorce, Martin (Citation2002) recognises the deliberate legislative choice of a non-clean break regime in the drafting of the Divorce Bill. He cites the position asserted by the then Irish Attorney General who regarded a clean break option as inappropriate in the Irish context and not an approach that “would be acceptable to the Irish people”.
11. Similarly, Ward (Citation1993: 3) refers to the legislative preparation for the referendum as “painstaking, wide-ranging and cautious”.
12. Section 13 – periodical payments and lump sum orders; section 14 – property adjustment orders; section 15 – miscellaneous ancillary orders; Section 16 – financial compensation orders; Section 17 – pension adjustment orders; section 18 – provision from estate of deceased spouse; section 19 – orders for the sale of property.
13. From the outset, commentators on the Irish divorce regime have been critical of the open-ended nature of the capacity to apply for ancillary relief. See Martin F (Citation2002) and Power C. (Citation1998).
14. O'Higgins J. further quoted directly from the judgment of Keane C.J. in T v. T; “It is obvious that the circumstances of individual cases will vary so widely that, ultimately, where the parties are unable to agree, the trial judge must be regarded as having a relatively broad discretion in reaching what he or she considers a just resolution in all the circumstances.”
15. Ibid. Buckley L.A. (Citation2004: 13) has suggested, with reference to this Supreme Court judgment that “the emphasis of the Supreme Court on “proper provision” rather than the “division” of assets was designed to rule out any strict rules or principles on division and to ensure that the prescribed statutory factors were fully considered in each case”.
16. Similarly in the more recent Supreme Court appeal hearing in MF v. EF [2005] IESC 45, McGuinness J. affirmed as “entirely correct” the view of the lower court regarding the extent of the applicant's entitlements. “I approach the issue of asset share on the basis that the court should provide not only for the needs of the applicant (where there is provision to do so) but also should assess a fair lump sum to reflect her interest in the family assets (not necessarily 50%) even if this is greater than her specific needs…” per O'Sullivan J. (Unreported High Court May 2002), although on the facts, O'Sullivan J. was deemed to have erred in including 22 adjoining acres within the definition of the family home.
17. In BD v. JD Unreported High Court 5 December 2003, in deciding what constituted proper provision for the parties in the circumstances, McKechnie J. recognised his obligation to be guided by the statutory factors and his duty to “utilise the facts of this case within the provisions of that section so that the resulting orders are fair, just and equitable.”
18. Notwithstanding the doubts expressed by some members of the court in the earlier case of T v. T, Abbott J. at 23 referred to the yardstick of equal contributions and one-third/two-third division of assets between the breadwinner and homemaker as having “the authority of the Supreme Court”.
19. See Martin (Citation2002) for a detailed analysis of the clean break approach.
20. For further analysis of the five judgments delivered by the Supreme Court, see further Crowley (Citation2004).
21. See further Buckley (Citation2007: 66).
22. The failure on the part of the judiciary to develop regulatory policy and the negative implications for private ordering is considered further below.
23. In relation to predicting the future income and financial needs of a spouse, Deputy McCartan queried whether the courts would require the employment of a soothsayer to provide the necessary foresight.
24. Notwithstanding the general reluctance to explain judgments with reference to the section 20 factors, a minority of judges have developed a practice of accountability by expressly identifying the factors that they have had regard to. In MR v. PR [2006] 1 I.L.R.M. 513, Quirke J. expressly identified sections 20(2)(a), (b), (c), (d), (f) and (l) as relevant in the circumstances, concluding that the applicant was thus entitled to the ancillary relief sought. Ultimately he was of the view that he was alleviating the unbalanced financial circumstances of the parties “in a just and equitable fashion”.
25. Per O'Neill J. quoting favourably from the judgment of Lord Nicholls in White v. White [2001] 1 A.C. 596.
26. For further commentary see Aylward R (Citation2009).