Financial Provision and Property Allocation on Divorce

333 Pages·2013·9.64 MB·English

Financial Provision and Property Allocation on Divorce - A Critical
Comparative Analysis of the Irish Decision-Making Policy and Process
Louise Crowley BCL LLM
Submitted for the award of PhD in Law
Cardiff Law School
Cardiff University
Supervisor: Professor Gillian Douglas
March 2010
UMI Number: U585376
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I would like to express sincere thanks to my supervisor Professor
Gillian Douglas for her dedicated support and invaluable guidance.
I would also like to thank my family for their love and encouragement,
in particular thanks to John and our two children Clodagh and Neil,
whose arrival in the course of this endeavour simply added to the
challenge of it all!
I confirm that this thesis is entirely my own work and it is submitted as
a result of my own research and investigation. Other sources are
acknowledged by explicit references.
Louise Crowley
30-03-2010
I hereby certify that this thesis has not been submitted nor accepted in
substance for any other degree or award, and further certify that it is
not being submitted concurrently in candidature for any degree or
other award.
Louise Crowley
30-03-2010
This thesis is being submitted in fulfillment of the requirements for the
degree of PhD
Louise Crowley
30-03-2010
I hereby give consent for my thesis, if accepted, to be available for
photocopying and for inter-library loan, and for the title and summary
to be made available to outside organisations.
Louise Crowley
30-03-2010
Summary of thesis
The aim of this thesis is to assess the Irish regulatory approach to asset and wealth
distribution upon marital breakdown, and to highlight the implications arising from the
failure to articulate the social policy aims of such regulation. Whilst the main body of the
thesis considers the regulatory approach of four distinct jurisdictions, it commences with
a critical overview of the rules versus discretion debate in order to illustrate the nature
and impact of different approaches to law-making. Thus chapter one incorporates both a
theoretical examination of rule-based and discretion-based regulation and an examination
of the significance of such regulatory approaches in the context of asset distribution on
divorce. Chapter two provides a historical account of the elevated status of the marital
family under Irish law and the implications for the manner in which the remedy of
divorce was eventually enacted. Chapter three provides a critical analysis of the content
and workings of the Family Law (Divorce) Act 1996, which in granting extensive and
infinite judicial powers to secure justice and proper provision, has evaded the
responsibility for identifying the objectives of such state intervention, creating a legal and
social policy vacuum and a system which lacks legitimacy, predictability and fairness. In
order to fully illuminate these shortcomings and ultimately inform the Irish lawmakers as
to the need for, and nature of reform, a detailed and comparative analysis of the
governing regimes of three distinct jurisdictions, California, Scotland and New Zealand is
presented in chapters four to six respectively. Particular attention will be focused upon
the willingness of these law-makers to enunciate the social and legal policy objectives of
their governing laws. Ultimately it will be argued that effective governance demands that
regulatory processes, howsoever structured, exist within a considered and articulated
legal and social policy context.
Financial Provision and Property Allocation on Divorce - A Critical Comparative
Analysis of the Irish Decision-Making Policy and Process
Table of Contents
Introduction
1 Introduction 1
2 Why does the current Irish regulatory approach to asset
distribution on divorce warrant consideration? 1
3 How are the weaknesses of the Irish regulatory process appraised? 2
4 Alternate approaches to asset distribution - comparative study of
the regulatory approaches adopted in California, Scotland and New
Zealand 3
5 Conclusion 4
Chapter 1 - Rules v Discretion
1 Introduction 5
2 How can the law be framed? 6
2.1 Rules 7
2.1.1 Evolution of legal rules 10
2.1.2 Rules as only one aspect of the regulatory process 10
2.2 Discretion 15
2.2.1 Effect of discretion-based justice 15
2.2.2 Source of discretionary powers 17
2.3 Principles, policies and standards 19
2.3.1 Introduction 19
2.3.2 Principles 20
2.3.3 Policies 21
2.3.4 Standards 22
2.3.5 Conclusion 23
3 Creating the law 24
3.1 Creating rules 25
3.2 Role of the legislature as law-maker 26
3.3 Role of the judiciary as law-maker 28
3.4 Who creates the underlying principles and policy aims? 29
3.5 Principles and policies - dual legislative and judicial roles? 31
3.6 Conclusion 32
4 Impact of judicial discretion 33
4.1 Introduction 33
4.2 Subjective judicial values 34
4.3 Structuring and limiting judicial discretion 37
4.3.1 Legislative guidance 38
4.3.2 Doctrine of precedent 39
4.3.3 Reasoned judgments 41
4.4 Conclusion 42
5 Judicial discretion - a controllable necessity? 43
Chapter 2 - A Historical Overview of the Regulation of Marital Breakdown in
Ireland
1 Introduction 46
2 Elevated status of the family under Irish Constitutional law 47
3 Historical influence of the Catholic Church on social and legal
policy 50
4 History of reform and remedies in the context of marital
breakdown 53
4.1 1967Informal Oireachtas Committee on the Constitution 53
4.2 Law Reform Commission Report 1983 53
4.3 The 1985 Report of the Joint Oireachtas Committee on Marital
Breakdown and the 1986 referendum on divorce 55
5 Judicial Separation and Family Law Reform Act 1989 58