The Irish Family Courts in the Context of ‘Proper Provision’ – Judicial Latitude, or Judicial Law Making?

Introduction

'The proper rule of the judiciary is one of interpreting and applying the law, not making it.'

Not only are the above words of Justice Sandra Day-O’Conner, former Associate Justice of the US Supreme Court, an axiomatic aspect of legality, but they also echo the position as stated by her fellow countrymen over two-hundred years prior, a position set out in the Massachusetts Declaration of Rights, still held as a truism in common law jurisdictions the world over; that the legal system operates under:

'a government of laws and not of men.' (Massachusetts Declaration of Rights [1779], Article 30)

As the old adage goes, however, actions speak louder and words and, unfortunately, the actions as taken by the Irish family courts as they relate to the concept of 'proper provision' post-divorce/judicial separation, seem to reinforce the idea that these fundamental words guiding our democracy, that we are governed under the rule of law, not under the rules of individuals, are not a reality in this jurisdiction as they relate to this area of family law.

Citing legislation and recent case law as examples, this article will conclude that the legislature has set out a series of laws pertaining to 'proper provision' post-divorce/judicial separation proceedings that are desperately lacking in consistency, congruency and clarity. Reforms, therefore, are needed for the benefit of all parties and practitioners involved in this area of Irish law.

The Current Legislative Framework - The Pros, Cons and Actions Needed to be Taken

'In deciding whether to make an order under section 12 , 13 , 14 , 15 (1) (a), 16, 17, 18 or 22 and in determining the provisions of such an order, the court shall ensure that such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned.' (Emphasis added)

The above excerpt from s.20(1) of the Family Law (Divorce) Act 1996 is set out on a similar basis at the Constitutional level:

'A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that…such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law' (Article 41.3.2.ii). (Emphasis added)

The old statutory stipulation under s.16(1) of the Family Law Act 1995 set out that that the court would:

'Endeavour to ensure that such provision is made for each spouse concerned and for any dependent member of the family concerned as [was] adequate and reasonable.' (Emphasis added)

Given this amendment, the argument, therefore, could be made that the Oireachtas does not equate “proper provision” with “adequate and reasonable” provision. Setting out what proper provision is not, rather than what it is, though, is still unclear and such ambiguity was noted by Ms. Justice Whelan in the very recent family law decision of the Court of Appeal in NO v PQ [2021] IECA 177, at para. 46.

Ultimately, the Oireachtas has failed to define what constitutes 'proper provision' with the above constitutional and legislative excerpts instead granting latitude to the courts in each individual circumstance; that is, it permits the court to determine what is 'proper' for both Applicant and Respondent in the given circumstances of the divorce/judicial separation proceedings before a court on any given day.

The courts have, too, attempted to define this seminal aspect of Irish family law. Mr Justice Fennelly in T v T [2002] 3 IR 334 opined that 'proper' in the context of the 1996 Act is synonymous with that which is “fair” or “just” (para. 21).

Given how such notions can vary from judge to judge, this does little in providing family lawyers with a means of offering clarity to their clients as to the foreseeable outcome of their case, clients who are already at a rather unclear stage in their lives.

Conferring such a wide margin of discretion on the Judiciary in this regard, contains both benefits and disbenefits.

In terms of the main, and in my view the only, advantage for such broad judicial discretion, Mr Justice O’Higgins summarised the positive lens through which one can view such a wide latitude most astutely, in writing:

'The widely different circumstances from one case to another… make it desirable that there be considerable discretion vested in the Court of Trial.' (C v C [2005] IEHC 276, para. 99).

In linking back to the words of Mr Justice Fennelly and how the concepts of ‘fairness’ and what is ‘just,’ are inextricably linked with the term ‘proper provision,’ as previously stated, such concepts can, and often do, vary from judge to judge.

For instance, Dr Louise Crowley highlighted, in analysing available Irish Family Law Court data, the largest disbenefit in the wide discretion vested in the judiciary; a point which, I believe, overshadows Mr Justice O’Higgins’ above cited assertion. Upon analysis of relevant court data, Dr Crowley noted that:

‘The wide discretionary powers applied by the judiciary on separation and divorce resulted in a considerable variation of approach and outcome. Rather than finding decision-making patterns, it was difficult to identify a consistency of approach. The outcome was wholly dependent on the individual judge.’ (Louise Crowley, ‘Dividing the Spoils on divorce: rule-based regulation versus discretionary based-decision’ (2012) International Family Law 388, 397).

This disconcerting conclusion arrived at not only poses problems for family law practitioners, but also runs afoul of Mr Justice Fennelly’s contention that ‘proper provision’ is akin to a kind of provision which is ‘jus’ or ‘fair’, considering that, in the words of Dr Miles, consistency itself is “an aspect of fairness.” (Joanna Miles, ‘Charman v Charman (No. 4) – Making Sense of Need, Compensation and Equal Sharing After Miller/McFarlane’ (2008) 20 Child and Family Law Quarterly 378, 387).

In my view, the primary, if not only, mechanism through which more consistency can be achieved is by calling upon the Oireachtas to set out more mandatory, clear, coherent, and congruent guidelines (albethey unexhaustive guidelines) for courts to consider in reaching decisions.

Such an implementation would:

1. Allow greater predictability for family law practitioners in informing their client as to the potential outcome of a case
2. Further encourage settlements in family law proceedings and
3. Avoid unnecessary litigation and costs; as was seen in the aforementioned case of NO v PQ.

In NO v PQ the Court of Appeal awarded double the sum in maintenance to the Appellant than was originally awarded to said party by Ms Justice Reynolds in the High Court.

Undoubtedly, were more pragmatic guidelines set out using legislative mechanisms, the High Court may well have arrived at this final conclusion at first instance, rather than protracting the litigation process and, consequently, the stress for all parties involved.

Conclusion

Parties applying for ancillary relief post-divorce/judicial separation proceedings are currently at a disadvantage due to the underdeveloped and unclear nature of the law on proper provision, as it currently stands, and the arguable judicial law making, that goes along with it.

As per the joint judgment of Mr Justice Clarke (as he then was) and Mr Justice MacMenamin in MD v ND [2015] IESC 16:

‘The consequences of marital breakdown can be difficult enough for parties without complex, protracted and, consequently, expensive litigation’ (para. 1.1).

In my view, a way through which such problems can be remedied would be through more codified legislative criteria as they relate to the law on ‘proper provision’, limiting judicial discretion and, in turn, allowing for more predictable outcomes: a fundamental aspect of procedural fairness.