Tuesday 21 May 2019

Major divorce reforms years away as pre-nup plan is parked

Josepha Madigan: Minister said there was an argument to look at more divorce reforms in the future. Photo: Arthur Carron
Josepha Madigan: Minister said there was an argument to look at more divorce reforms in the future. Photo: Arthur Carron

Shane Phelan, Ciaran Moran and Anne-Marie Walsh

Key divorce reforms called for by Ireland's leading family law expert are set to be parked by the Government - and may not be acted upon for years.

Farming and business interests have supported recommendations by Dr Geoffrey Shannon that the law be reviewed to allow pre-nuptial agreements to be recognised.

But Justice Minister Charlie Flanagan will wait for a further report from the Law Reform Commission before considering the issue. Other recommendations made by Dr Shannon, including provision for "clean break" divorces where there are no children, are also on ice.

The Irish Independent has learned the commission's work is only set to begin later this year - and that it could be 2021 before it reports.

This dashes hopes of further immediate reforms, should the May 24 referendum pass.

The Government is urging voters to remove the Constitutional requirement for couples to have lived apart for four of the preceding five years before they can divorce.

Dr GeoffreyShannon: Family law expert called for the Succession Act to be reviewed. Photo: Damien Eagers
Dr GeoffreyShannon: Family law expert called for the Succession Act to be reviewed. Photo: Damien Eagers

If passed, it plans to legislate to reduce the minimum living-apart period to two years.

In a report published by the Law Society earlier this month, Dr Shannon recommended pre-nuptial agreements, which are effectively precluded under Irish law, should be valid and enforceable to the extent they support and foster the best interests of children and spouses. He said judges should retain a wide discretion to vary the terms.

Dr Shannon also called for the Succession Act to be reviewed, with particular regard to the consideration of "clean break" scenarios.

These are divorces where the parties will no longer have financial ties once the order is given by the court, but the Divorce Act has been interpreted as prohibiting them.

Justice Minister Charlie Flanagan
Justice Minister Charlie Flanagan

Culture Minister Josepha Madigan, whose private members bill proved the catalyst for the referendum, said: "I think there is an argument to look at more reform into the future."

But speaking on Independent.ie's 'Floating Voter' podcast, she said this was a matter for Mr Flanagan to look at.

Mr Flanagan told the Irish Independent he welcomed Dr Shannon's research which had helped provide a deeper understanding of the personal tragedies involved when a marriage breaks down.

He signalled, however, he would wait for the Law Reform Commission to report before considering taking action.

"The examination will include consideration of pre-nuptial agreements and also whether a clean break approach is possible. I look forward to the outcome of their expert analysis and I will give careful consideration to any recommendations they propose," said Mr Flanagan.

Farm organisations have called for legal provision for pre-nuptial agreements to be introduced if the divorce waiting period is shortened.

The Irish Cattle and Sheep Farmers' Association said quicker divorces will add to the worry about family farm transfer and the potential to break up a farm. "Farm families are not immune to divorce but divorce in a family farm setting can have the added trauma of destroying the farm business," a spokesperson said.

"Quicker divorce should be accompanied by pre-nup legislation which would give more weight to these in a divorce settlement."

An Irish Farmers' Association spokesman said uncertainty surrounding the legal recognition of pre-nuptial agreements was negatively affecting the timely lifetime transfer of family farms.

Shane O'Loughlin of the Irish Creamery Milk Suppliers Association's farm business committee said: "We cannot see how if both individuals are happy to enter a pre-nuptial agreement, freely and without any question of undue pressure, why that should not be treated as an acceptable legally binding arrangement."

The body representing small and medium enterprises said it would be useful to have legal certainty around pre-nuptial agreements where business premises, employees or business equity is concerned. "The current legal situation means that marital splits where there is business equity involved can be very volatile for that business," said ISME chief executive Neil McDonnell.

Irish Independent

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