Spousal maintenance after divorce, time for change? – Anne Horan

Spousal maintenance after divorce – Time for change?

Anne Horan

Following the break-down of a marriage, the parties may well try to go their separate ways, but often this is not easily achieved. Who continues to live in the family home, how will the mortgage be paid, where will the children live and how easy will it be for the partner who has not worked in years, other than part-time, to get a full time job? Perhaps it is aspirational to say that once a marriage ends that the parties should sever all ties where possible, and start afresh. Life tends to complicate issues and solutions that work, are difficult to come by. As same sex marriage is relatively new to Ireland, our governing legislation regulating the break-down of marriage, both on divorce and separation and the existing body of case law has traditionally related to heterosexual marriages. Notwithstanding the fact/impact of divorce the emphasis has been on the protection of the traditional family unit based on marriage that has constitutional protection under all aspects of the Irish Constitution.

The political and social context which gave rise to the introduction of divorce law in Ireland in 1996 forms the basis for the open-ended and very deliberate discretionary based structure that governs this remedy. The result is that the Irish approach is one of almost absolute judicial discretion and especially in the context of inter-spousal support on divorce. The Irish legislature has chosen not to create fixed rules, rather it has established the basic standard of “proper provision” as provided for in the 1996 Act.

It is very well established by Irish case-law that the issue of maintenance can never be finalised. An alternative approach in America was influenced by the equal rights movement in the 1960’s and 70’s which gave rise to a rule-based, equal division regime. On the face of it, the Californian approach to the issue of the division of marital assets, is entirely rule-based. Subject to alternate agreement (like a pre-nuptial agreement) the Californian courts must award an equal division of the marital property of the husband and wife. Such a system of fixed rules, with equal division at its core, does bring certainty not only to the court process but also any negotiations. Settlements are made easier to negotiate if the outcome is predictable. However, a system of fixed rules does not necessarily lend itself to a fair outcome. Research has shown that it can impoverish women, this necessitated the introduction of amending legislation to give the court discretionary power to order spousal support when the circumstances of the parties require it to be ordered. So the imbalance can be addressed through ongoing maintenance payments if necessary. While the Californian approach is clearly much more rule based that the Irish approach, it does show that a 50/50 sharing of marital assets at the date of the divorce does not always equate to fairness. Research suggests that the impact of the equal division rule is that its effect is in fact to impoverish women, and not to equalise the historical gender divide in the home.

The Scottish approach to financial provision between spouses on divorce is regarded as a “principle-based” approach. Scottish family law is designed to limit the scope of judicial discretion exercisable in divorce cases by setting out five principles which must guide the court in reaching a decision. The main principle which is used in the majority of cases is that upon divorce the matrimonial property will be divided fairly, and fairly means “equal” unless there is a compelling argument to justify a fair but unequal split. Where ongoing spousal support is deemed necessary this is limited to a maximum of three years post divorce. It is only in cases of “serious financial hardship” that the court will consider ordering a payment of spousal support beyond this term. Until recently this has been tightly construed by the courts with only making awards in a handful of cases. Once a decree of divorce is granted in Scotland, a spouse cannot go back to court seeking further financial provisions. This again differs from the Irish system where it is open to a spouse to apply for further financial provision at any time following the divorce being granted.

While the Scottish system may seem a little harsh on previously dependent spouses, typically housewives, it is important to remember that in Scotland families have access to State child care. The availability of a State funded child care system together with other social policy structures which support the homemaker upon his/her return to work, or to remain in the home as a primary carer, are fundamental to facilitating the achievement of financial fairness following the granting of a divorce decree.

The introduction of the remedy of divorce in Ireland in 1996 was very politically charged. The 1986 divorce referendum was defeated with the “no” vote securing 73.5% of the vote. The 1995 divorce referendum was carried by the slimmest of margins, 50.28% voted “yes”. This resulted in divorce legislation which sought to ensure an inability to break financial spousal ties with a strong reliance upon judicial discretion, in order to ensure fairness in every instance.

Twenty one years have now passed and the change in family formations is considerable with a rapidly modernising, rapidly secularising, increasingly global Irish society. A lot can be learned from examining the regulatory structures which are in place in other jurisdictions regarding asset division and ongoing responsibilities upon divorce. In order to effectively reform Irish divorce law, law makers ought to begin with a consideration of effectively supporting homemakers in returning to the work place, following the breakdown of a marriage, by having in place a supported state funded childcare system. Where one party to a marriage may have not worked for a long time they will require ongoing spousal maintenance, together with childcare support where appropriate, until they find work or receive the necessary up-skilling/training to be in a position to get work. Once these support structures, together with a fair sharing of the marital assets, are effectively in place for the homemaker then the Irish law makers can look at putting a limit at the number of years which a spouse may receive maintenance after a divorce like the Scottish system. The Irish judicial approaches to the granting of spousal maintenance after divorce is inconsistent and the cases where maintenance ought to be granted needs to be set out more clearly in the legislation so that people can make more informed arrangements or settlements. Settlements are made easier to negotiate if the outcome is predictable.



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