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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

• 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

• 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

• 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

• 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

• 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

– 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

• 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

• 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

• 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)

• 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)

• 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)

• 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)

• 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)

• 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

• 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 (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)

• 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

• 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)

• 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

• 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)]• 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

– 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

• 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

– Identify social aims– Create principle driven judicial powers– Retain judicial scope for individualisation– Eliminate social policy vacuum

• Incorporate outcomes into regulatory process