Journal Article

From Prohibition to Approval: The Limitations of the ‘No Clean Break’ Divorce Regime in the Republic of Ireland

Frank Martin

in International Journal of Law, Policy and the Family

Volume 16, issue 2, pages 223-259
Published in print August 2002 | ISSN: 1360-9939
Published online August 2002 | e-ISSN: 1464-3707 | DOI: http://dx.doi.org/10.1093/lawfam/16.2.223
From Prohibition to Approval: The Limitations of the ‘No Clean Break’ Divorce Regime in the Republic of Ireland

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The recent introduction of divorce in the Republic of Ireland represented another manifestation of the gradual liberalization of Irish society which also coincided with a relaxation of the laws regarding homosexuality and contraception. Divorce became another indicator that Ireland had moved from being a traditional homogenous society to being a heterogeneous modern urbanized society. However, the model of divorce that is available is the ‘no clean break’ option. Consequently, attempts to effect full and final settlements of all property and financial issues are not possible. The fundamental ideology underpinning Irish divorce legislation is unequivocally clear in the objective of ensuring that ‘spousal’ legal rights and obligations continue. A similar jurisprudence prevailed in England between 1971 and 1984, whereby courts placed the parties in the position in which they would have been had the marriage not broken down. Irish judges are applying a restrictive adjudicative approach to the issue of ancillary reliefs. Is this now sustainable? A more realistic approach to divorce law is needed. Prohibiting ‘clean break’ divorce in all circumstances is unjust and inequitable. Irish divorce law needs reformulation and restructuring so as to include a statutory emphasis on the importance of each party to a divorce doing everything possible to become self‐sufficient. There is an inherent illogicality and inconsistency in allowing parties to avail of the divorce remedy while at the same time stipulating continued financial obligation. What have been the socio‐legal advantages of operating a ‘clean break’ regime in other jurisdictions? In light of these advantages can the continued exclusion of the ‘clean break’ option in Irish divorce law be justified? This article critically evaluates the divorce legislation and relevant case law and argues that it is imperative that a clean break option be available. Such a model of divorce would necessitate fundamental and radical changes in Irish society's attitude towards dependent spouses.

‘Divorce creates many problems. One question always arises. It concerns how the property of the husband and wife should be divided and whether one of them should continue to support the other. Stated in the most general terms, the answer is obvious. Everyone would accept that the outcome on these matters, whether by agreement or court order, should be fair. More realistically, the outcome ought tot be as fair as is possible in all the circumstances. But everyone's life is different. Features, which are important when assessing fairness, differ in each case. And, sometimes, different minds can reach different conclusions on what fairness requires. Then fairness, like beauty, lies in the eye of the beholder.’

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Subjects: Family Law ; Marriage and the Family

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