Saturday 23 February 2019

'Clean break' divorces and lump-sum pay-outs to be considered in review of law

 

Post divorce lump-sum pay-outs will be examined Stock picture
Post divorce lump-sum pay-outs will be examined Stock picture
Laura Larkin

Laura Larkin

Post divorce lump-sum pay-outs and so-called "clean break" provisions will be examined as part of a review of divorce rules.

The Law Reform Commission (LRC) is to examine the rules that govern how couples handle their finances and assets when a marriage breaks down, to determine whether changes to the laws could help avoid distressing court battles.

It comes ahead of a landmark referendum due to take place next year which looks to halve the time a couple must wait before applying for a divorce, from four years to two.

The LRC hopes to determine "whether further guidance would be possible as to what amounts to 'proper provision' on divorce and how this might assist couples to avoid adversarial disputes in court; and to what extent lump sum arrangements could be involved and whether a clean-break approach is possible".

BID: Josepha Madigan is an advocate for a change in law. Picture: Damien Eagers
BID: Josepha Madigan is an advocate for a change in law. Picture: Damien Eagers

Proper provision refers to the future situation of both spouses when a marriage breaks down. Criteria which must be taken into account include income, standard of living, age, length of the marriage and contributions both financial and otherwise during the marriage. However, critics of the current law have said it is too vague which leads to unpredictability in settlements as it is up to each individual judge to apply the criteria as they see fit.

Gillian O'Mahony, of Lynch Solicitors, said divorcing couples were "taking a gamble" when they go to court.

A dedicated family law court with specialist judges would help a more uniform approach she said, while also helping to alleviate the stress of attending a regular court. More definitive guidelines would help promote mediation as a means of reaching an agreement on dividing up assets, she added.

Culture Minister Josepha Madigan, who has advocated reform of Ireland's divorce laws, said she hopes that the LRC will look at various elements of 'proper provision', including spousal maintenance so as to ensure a person who has given up career opportunities for family reasons is not left at a disadvantage.

"Increasingly maintenance is being awarded for children only. This is a trend in other countries also... Maintenance issues should examine lump sums for re-training and graduated maintenance for back-to-work support as well as, in some cases, on-going maintenance where there are significant workplace limitations," she told the Sunday Independent.

While there is no allowances for a so-called "clean break" provision in Ireland at present - meaning the finite end to the financial relationship between both spouses - the LRC is expected to examine if such an approach could take place here.

There is case law for lump-sum payments and they do happen with the courts having indicated it is desirable where appropriate.

However, the introduction of a mechanism to allow for a type of clean break here may end the potential for someone returning "for a second bite of the cherry".

Ms Madigan, meanwhile, said that while a clean break may be desirable, it is most fitting in what are known as "ample resources" cases but in general, a clean break may not be possible.

However, she said a firmer position in relation to "full and final" settlements , which are available now, to ensure they are final would be desirable where they are workable.

She also wants to see an examination of how pre- and post-nuptial agreements are dealt with on divorce.

The planned review is among 15 projects to be undertaken by the LRC once sign-off has been given by the Dail's Justice Committee and the Cabinet.

Sunday Independent

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