Starting Point
Article 41 of the Irish Constitution deals with family. It provides that the family is the “natural primary and fundamental unit group of Society”. It guarantees to protect the family and in Article 41.2.1 and 41.2.2 provide as follows:
“2 1°. In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2°. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”
This has been described as, perhaps, the single-most dated provision of the Constitution and it has been relied on very infrequently. It may be regarded, indeed, as an embarrassment in modern society. It was proposed to hold a referendum in relation to its removal from the Constitution in 2018, but the proposal was stalled.
The International Dimension
It is worth noting in this article that we are looking at some of the super-rich couples. The very rich frequently have homes, businesses or family ties in many different countries. They can effectively decide where they will take their divorce cases. It may be possible for the very rich to establish jurisdiction in many different countries. International Family Lawyers sometimes face a race to file papers in whatever country they feel is most advantageous to their clients. So how does Ireland compare for the dependant spouse or the richer party in a Family Law divorce case?
Prior to his separation, Jeff Bezos, the Amazon magnate, was reputed to be the richest man in the world. After his separation from his wife, he continues to retain this status. His wife also joined him in the top ten richest people in the world. If Jeff Bezos had consulted BDM Boylan Solicitors, he might, today, be much richer.
The English Situation
The landmark decision in England was that of White v White before the House of Lords in 2001. Prior to White v White, the English courts operated a yardstick of “reasonable requirements”. The House of Lords has since emphasized the need for equality and fairness in the division of assets. It is worth noting that under the English legislation, courts could make a “clean break order” as between couples. This may have urged them to use the yardstick of “equality and fairness” as opposed to “reasonable requirements”.
In the White case, the wife, who could scarcely be called dependant, had assets to the value of £1,500,000.00 in her own name. The House of Lords gave her a further £1,500,000.00, giving her close to one half of the family assets. The lower court had given her one fifth. It seems from this and many other cases that, whilst wives might not get one half of the assets, they do much better than in Ireland. In England, where there is no written constitutional protection whatsoever for women, they somehow seem to do better before the courts on divorce.
In various States in America, wives or dependant parties can also get up to 50% of assets and sometimes a proportion of assets long after the marriage is dissolved.
So how would we advise Jeff Bezos? Jeff, you should have bought a house in Ireland (through our Conveyancing Department), lived here for a short period, issued divorce proceedings in Ireland and got rid of her for about 15% of your net assets.
Jeff, however, did the right thing and was considerably more generous to his wife. Am I just an old romantic or should the Irish courts get in line with other countries, having regard to the lip service we pay to protecting the family in our Constitution?
Conclusion
Article 41.2 has had little impact, if any, on the concept of proper provision thus far. The spotlight is currently on this provision of the Constitution, however, and there are many who favour the amendment of the Article to ensure protection within our society of those who are dependant, who are working in the home or are caregivers. Will this highlight the need for a fresh consideration of proper provision from a constitutional perspective or, indeed, will current discussion prompt legislative intervention on the issue?
We await developments with interest.
David Browne
Partner,
BDM Boylan Solicitors,
dbrowne@bdmboylan.ie,
0214313333
If you have any queries about this or any other legal issues, we at BDM Boylan have the experience and expertise to help you.