DIVORCE IN IRELAND – A NEW PHENOMENON OR NOT?
A turn of a circle!!!
by Michelle Clarke
In this essay I intend to examine the history of divorce in Ireland, what advantages are derived from the late arrival of Divorce legislation into the Irish Republic, to determine if there is anything which can be learned from the past which will initiate further changes in legislation and to review options available to spouses wanting to separate prior to the Act.
Our legal system is based on Common Law and Statute Law. Judges interpret the relevant statutes and refer to precedents set down in earlier cases. On 24th November 1995, the citizens of Ireland approved an amendment to the Constitution allowing the Oireachtas to pass the new Family Law (Divorce) Act 1996 (“Divorce Act”). The Divorce Act came into operation February 27th 1997. The interpretation of the statute, the lack of precedent cases to refer to, precedents of void/voidable marriages, the Recognition of Foreign Divorces Act 1986, Article 41 of the Constitution which recognises the Family “as the natural primary and fundamental unit group of Society”, the endeavours in America and the UK to re-establish this principle, the “no fault” aspect, are some of the many areas make the new Divorce Act an interesting area to examine.
What is interesting is that in the 8th/9th Century Ireland in Brehon law, divorce was an option. Men could divorce their wives for betrayal, where the wife brought disgrace to his honour, if she stole, for procuring an abortion or aborting herself, for failure as a housekeeper and if there was mutual consent. Women could likewise divorce their husbands; if the husband was sexually unsatisfactory, i.e. he was sterile, impotent, a homosexual or obese, if he became a vagrant or lost all his property, if he maltreated her, for slander, derision, neglect or deception, if he paid insufficient maintenance, for breach of marital privacy, for madness or an incurable illness or where the man opted to take a second wife. Brehon law worked on the basis of penalties, a pregnancy as a result of rape meant the father had to rear the child and in a divorce situation, the dowry had to be repaid to her family by the husband and any chattels, possessions or money brought by her to the marriage had to be returned to her. She was also entitled to a distribution of the gains made during the marriage period.
In the 9th Century the Vikings invaded. Women had a prominent position in their culture which intermingled well with Gaelic culture. Viking women could inherit and hold property in their own name. They were free to divorce their husbands and retrieve goods brought to the marriage. This system indicates an equality between men and women and their contribution to the family unit. Having lived in Zimbabwe, it is interesting to note that in that Society, women work equally, if not harder than men. A maid in a house is senior, both financially and in status, to a gardener (often her husband). Children of a marriage are reared by grandparents, aunts or others who receive payment. In Zimbabwe “Lobola” is paid by the husband-to-be to the Bride’s family, interestingly this mirrors the following Brehon law:-
“The husband-to-be shall pay a bride-price of land, cattle, horses, gold or silver to the father of the bride.
Husband and Wife will retain individual rights to all the land, flocks and household goods each brings to the marriage”.
The Anglo Norman Conquest of Ireland took place in the 1169. Gaelic law and Viking Law were over-taken by English Common Law which incorporated the religious concept of marriage as an indissoluble union for life, as a sacrament of the Church, and the consensus of opinion that the preservation of the stability of marriage was a vital social need. Until the mid-1880’s, marriage was the exclusive concern of the Church of England. Disputes were dealt with by the Church’s own courts and Canon law pertained. The ordinary courts did not deal with matrimonial matters at all. Canon law regarded marriage as a sacrament and did not permit remarriage in the lifetime of the other spouse, however it did permit separation. They granted divorce mensa et toro (‘from table and hearth’) in cases of adultery, cruelty or desertion. They made orders for custody of the children and financial support for wives and children called ‘permanent alimony’. Sacramental marriage as previously stated was indissoluble and created no property rights between the spouses. Church teaching stated “The Twain Shall be of One Flesh”. It is this influence that removed the partnership concept of the early Gaelic/Viking law that if both parties agree, a marriage contract can be dissolved.
Social pressures brought about changes in the evolution of the concept of marriage (‘the sacrament of the Church altered and it became marriage, the partnership, the contract). The medley of Church and Contract law however has created unclear parameters. Divorce in today’s society is prevalent and if this is the case, then those who choose to marry should be free to marry without the predominant influences of Church interpretation. Marriage, as a partnership is a matter for the civil law; it is formed by agreement i.e. a contract. If it is a contract then it should be possible to dissolve it by agreement or by the court if it becomes unworkable or one party has broken a basic term of the agreement. The property rights should therefore depend on the terms of the agreement, some assets being owned separately, others jointly.
The Family Law Act 1995 and the Divorce Act has not yet enveloped this development which existed in the past. Present separation and divorce legislation may be contrasted with the traditional law of maintenance and succession which was based on marriage as a life-long contract. The spouse who failed to act in accordance with the contract lost his or her rights as detailed in the contract, and the other spouse was entitled to be placed, as far as possible, in the same position as if the contract had been observed. The result was that the deserting spouse lost maintenance and succession rights but the innocent spouse could claim that his/her standard of living be maintained as if the marriage had subsisted. The element of “no fault” in the Divorce Act prevents this approach unless the Judge decides to take account of the provision “that if the conduct of the spouse is such that in the opinion of the court it would be in all the circumstances of the case be unjust to disregard it”.
Presently pre-marriage contracts, providing for what is to happen in the event of divorce, are deemed frustrated, because any agreement on marriage which contemplates divorce is contrary to public policy and void. Pre-marriage contracts apply in America and terms can go so far as to include brides determining their value in the event of them not remaining in paid employment. Marriage for life i.e. pre the Divorce Act possibly merited a sharing of assets/finances gained pre-marriage but now that divorce is an option, it is my opinion, that a spouse should by contract be able to identify assets/property/money which are not to be divided at the Courts discretion in the event of a divorce. If a spouse receives money from their family, it surely is a presumption, to assume that it is given to the husband and wife.
In Ireland we have had the benefit of being able to review divorce legislation in other countries, to see the pitfalls and the social implications. We have had to amend our constitution which places a high value on the family as a unit, in such a way as to prevent a divorce if at all possible. The conditions to be complied with are stringent with a strong emphasis on supporting dependent members of the family unit. The interesting aspect of the Irish Divorce Act is that it is “No Fault”. If the following conditions are complied with, then either spouse can proceed with a divorce application:-
- At the divorce application, the spouses must have lived apart from one another for a period of, or periods amounting to, at least 4 years during the 5 year period preceding the application.
- There must be no reasonable prospect of reconciliation.
- The court must be satisfied that proper provision exists or will be made for the spouses or any dependent members of the family.
- At least one of the spouses must be either domiciled in the State on the date proceedings were started, or ordinarily resident in the state for at least one year prior to that date.
4 years separated during a 5 year period is intended to give adequate time for an opportunity to reconcile and still not jeopardise the divorce. The Divorce Act allows the court to make a variety of orders before deciding whether to grant a divorce. This is important as the spouse, who has financial and other commitments to their family unit, will have to prove to the court that during the 4 year period prior to the application for divorce that they have complied with the condition to provide support. 41.3.2 of the Constitution stated that no law can be enacted in Ireland to allow a marriage to be dissolved. This meant that the people of Ireland, unlike their other European neighbours, could not divorce and remarry.
Alternatives were and are still available, namely for the Courts to grant a judicial separation or to declare a marriage to have been invalid from the start i.e. State annulment or nullity. These alternatives provided a partial solution to the problem but the 1995 referendum, although only by a marginal vote, saw Article 41.3.2 replaced. It was put forward that 41.3.2 be simply removed and no other provisions be added but the importance of the protection of the family unit and the inability to make divorce an easy option resulted in the insertion of 4 provisions stated above.
The impact of the Divorce legislation is questionable. Now we have Divorce but is the cost and work involved to obtain it worth it, either financially or emotionally? Divorce permits remarriage but the assumption is that those presently separated want the freedom to remarry their new partners. By virtue of the fact that no legal entitlement to divorce existed pre 1997 does not mean that marriages did not break-down? They did and people sought their own remedies and Family Law legislation particularly since 1986 aimed at protecting those affected by marital breakdown. For those determined to separate, options existed. The Domicile and Recognition of Foreign Divorces Act 1986 ensured where one spouse changed their domicile and obtained a divorce in that jurisdiction that their divorce was recognised and that they were free to remarry.
The mobility of labour throughout the 1980’s and 1990’s made this a possible option. The DRFDA 1986 changed the law in that a woman is no longer deemed to be the same domicile as her husband. I suspect the Revenue and Courts have shown leniency in their definition of “domicile” prior to the Divorce Act but now the domicile rule will be more strictly interpreted, otherwise, rather than use the Irish system for divorce, the alternative, quicker and cheaper, route in the UK, would be more effective. Civil or State annulments were also an option. A State annulment is a High Court Declaration that the marriage was null and void and therefore never existed. This is a costly and protracted procedure which costs over £10,000. The High Court can grant a Decree of Nullity for a number of reasons, including:- incapacity to marry, e.g. if either party was married to someone else at the time of the marriage or was under age not observing the formalities e.g. no witnesses non-consummation of the marriage absence of free consent, e.g. if it can be proved that, at the time of the marriage, either person was incapable of understanding the implications of a marriage contract due to insanity, or that either person was intoxicated, under duress, impotent, or unable to sustain a normal marital relationship (e.g. due to a serious psychological, emotional or psychiatric disability which was not known to the other person at the time of the marriage).
Again, this is an area where the Courts may have extended boundaries particularly re. duress or where the person was deemed unable to sustain a normal marital relationship. A Decree of Nullity, given the absence of Pre-Marital contracts, in my opinion, will continue, where possible, to be an alternative to Divorce. If one party is more financially endowed than the other and there is a possibility of having the marriage declared void i.e. deemed to have never existed, this will be the recommended route, as they will not be obliged to pay maintenance to the dependent spouse and the obligations that must be complied with as per the Constitution amendment will not apply.
It is interesting to note that despite the Divorce ban, the legislation passed in Ireland over the past 10 years is protective over the family unit. The Status of Children Act 1987 removed discrimination in law between children within and outside marriage. The Jurisdiction of Courts and Enforcement of Judgements (European Communities) Act 1988 ensures the recognition and enforcement of civil orders including maintenance in the European Union. The Adoption Act 1988 permits children of married parents to be adopted in exceptional cases. The Family Law Act 1988 abolished action for restitution of conjugal rights. The Judicial Separation and Family Law Reform Act 1989 extended the grounds for obtaining judicial separation, provided the courts with power to distribute property on separation and to order maintenance for dependent spouses and children. This Act also recognises a person’s work within the home, or in looking after children, as a contribution to be taken into account in making such orders. The Children Act 1989 makes provision for placing children in care in certain cases. The Jurisdiction of Courts and Enforcement of Judgements Act 1993 provides for the enforcement of civil orders including maintenance orders in other European jurisdictions. The Maintenance Act 1994 provides for the enforcement of maintenance orders. The Social Welfare (No. 2) Act 1995 ensures that divorcees will not be disadvantaged in terms of their social welfare entitlements. The Family Law Act 1995 strengthens the powers of the Courts in relation to maintenance and pensions, raises the age of marriage to 18 years, introduces three-month notice period for marriages, and provides role for welfare service in family cases. Women’s Aid, the National Council of Women, AIM and others have played a significant role in the protection of women and children and have been instrumental in the legislative changes mentioned above.
The foregoing legislative changes all consolidate the family orientated approach to be found in Ireland and indicate a policy of protectionism to children and dependent spouses. Women more often tend to be the dependent spouse. The emphasis on “economic” contribution, the non economic value of women’s work within the home and as carers, the tendency for men to earn higher incomes greatly diminishes a woman’s access to economic value hence it is necessary for the courts to be fair in administering divorce/separation/maintenance legislation. Hopefully now that divorce is an option, newly married couples will set a new agenda. Women who choose to marry will be cognizant that it may no be a life-time commitment and will more than likely remain in the workforce, limit their family size, send their children to crèche facilities and the emphasis should alter from dependency to economic equality. However, before this evolution can take place, the situation at present, according to Alan Shatter, author of Family Law in Ireland, is that there are 90,000 separated people in Ireland and there are no doubt many others playing the wait and see option prior to their decision of going through the legal process for separation/divorce.
Divorce in the UK is easy to obtain but often there is a Decree nisi and inadequate financial provision made for the first family. The lack of family emphasis and ease and speed with which a divorce can be obtained has created its own social problems. In my opinion, the undertaking to marry, have children and create a solid unit is important. To make it easy for either spouse to renege on the commitments of this undertaking is not beneficial to society. In America and the UK, they are now re-appraising the ease with which a divorce can be obtained and luckily in Ireland we have had the advantage of looking at the impact of divorce in other countries and the social problems created. The procedure as directed by the Divorce Act for respective solicitors to advise and give details of counsellors, to recommend mediation, the 4 year rule, the requirement to provide adequate maintenance to dependents all focus on the perspective of giving both spouses every option to re-consider their decision to separate.
Divorce in Ireland – a new phenomenon or not? Not really. Divorce is a legal term relating to common law and statute and the aim is to put an end to a formal contract of marriage. A married couple may choose to live apart and in the absence of Divorce legislation in the past, solutions were found; wives/husbands were deserted, separation agreements existed, marriages were declared void, foreign divorces were obtained. The Family Law Act 1995 gives power to the Circuit Court to make orders on financial provisions for spouses in the event of judicial separation and /or foreign divorce. The Act is comprehensive permitting the court to make a number of orders in relation to maintenance, periodical/lump sum payments, property adjustment orders, financial compensation orders and pension adjustment orders. In the case of a dependent spouse, retirement benefit orders and contingent benefit orders can be made. This in effect means that a choice can be made by couples to select the Judicial Separation route enabling to avail of the foregoing provisions. Then at a later stage, they have a “second bite at the cherry” when an application is made for the divorce. In this case, the divorce application may be appropriate for the spouse whose circumstances have deteriorated since separation while the circumstances of the other spouse have improved or for the dependent spouse and family, who at the time of the separation were not made aware of the true economic position and as a result do not receive a fair settlement.
Creases still exist. Changes in legislation must occur. The forthcoming divorce cases or lack of them will indicate the options people choose once they decide to terminate their marriage.
Essay by Michelle Clarke
Submitted to Ailbhe Smyth: Centre for Women Studies UCD 1997
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