The Gazette 1993

GAZETTE

B O O K

R E V I E W S

MWH

DECEMBER 1993

Divorce in Ireland Who

Should Bear the Cost?

Py Peter Ward, Cork University

Press, 1993, 72pp. IR£3.95, softback

"Divorce impoverishes women and

children - Vote No". The first line of

Peter Ward's

pamphlet on

Divorce in

I Ireland - Who should bear the Cost?

j brings back vivid memories of the 1986

referendum campaign when argument

I and counter argument were proffered

by the pro and anti-divorce lobbies.

The Programme for Government

contains a commitment to hold another

I referendum and it is commonly

| believed that this will take place in the

Spring or Autumn of 1994. The debate

is therefore starting again. Although

Peter Ward makes no secret of his

view that the introduction of divorce is

long overdue, this does not detract

from his courageous attempt to look at

this subject as objectively as possible

and to provide us with information on

the extent of marriage breakdown in

this country and empirical evidence on

how our statutory remedies work in

practice. He also examines the

international trends in child support.

The theme of Peter Ward's booklet is

that it is marriage breakdown and separ-

ation that causes poverty for women and

children post separation, and not

divorce itself. Marriage breakdown is

alive and well and thriving in Ireland

and it defies logic to believe that the

retention of the constitutional ban can

somehow render us immune from the

| deleterious financial consequences of

this situation. In our peculiar way, we

hide behind the ban on divorce and fail

to address the problem of financial

hardship as a result of marital break-

down. We believe that, somehow, no

divorce protects us.

Peter Ward tries to establish the extent

of marriage breakdown in Ireland.

This is not an easy task. The sources

for the statistical information are

scattered and even the Government

White Paper on Marital Breakdown

concedes that the figures may be

understated. He also examines the

research from the UK and US on the

level of support awarded to dependent

spouses and also refers to his previous

study on the financial consequences of

marital breakdown. It is clear from an

examination of the evidence that the

j consequences of divorce are the same

as the consequences of marriage

breakdown. All the studies show the

low amounts of maintenance awarded

by the Courts and the high rate of

default whether in the context of

divorce or separation.

A useful examination is also made of

| the legal obligation to support. It

should be noted that the obligation is

j spousal and not just that of a husband.

Sadly, this has not always been

accepted by women whose financial

circumstances are superior to those of

their husbands. The 1976 maintenance

legislation and the 1989 Judicial

Separation Act focus on the

discretionary nature of the relief,

which has led to wide variations in

awards and makes it difficult for

practitioners to advise their clients in

advance with any certainty on what

level of maintenance they may be

! required to pay. Such opportunities as

have been presented to the higher

courts to establish firm principles have

not been used to do so.

Perhaps the most interesting chapter is

| the one on Social Welfare. With the

| established difficulties in obtaining

! and enforcing realistic maintenance

S awards, social welfare payments

constitute the main source of income

for women and children. Some

progress was made in 1990 in

eradicating the complex categories of

reliefs available with the introduction

of the Lone Parent Allowance which

! provides a single payment to all lone

parents who qualify irrespective of the

sex of the parent or the cause of the

lone parenthood. Furthermore, the

1989 Social Welfare Act introduced a

new concept of a 'liable relative' who

may be pursued by the Department to

refund or make a contribution to the

overall cost to the exchequer of these

payments. There continue to be

anomalies in the system. Many of

these were highlighted by the

Commission on Social Welfare which

reported in 1896. The report was

published in advance of the

referendum campaign but it stated that,

if divorce were introduced, a more

thorough review of income support for

lone parents would be required. Sadly,

the White Paper on Marital

Breakdown says nothing on this point

save that it will have to be reviewed

but with no indication of the Govern-

ment's thinking on this critical issue.

Ireland, like the rest of the Western

world, shares the phenomenon of

changing family structures, marriage

breakdown and the consequent poverty

of lone parents. Although recent

reforms in the law and social welfare

code have assisted there has been no

comprehensive review. Perhaps the

debate on the introduction of divorce

will provide the opportunity to funda-

mentally reassess the situation. Peter

Ward's book aims at a better informed

debate for the next divorce referendum.

His publication certainly assists this

end and succinctly identifies the issues

that must be addressed.

By A.J. King and J.S. Barlow,

London, Blackstone Press Ltd.,

1993, XI + 297pp, paperback, large

format, £14.95 sterling.

It has been said that the experienced

businessman knows that if he is going

Muriel Walls

Business Law

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