1. Kahn-Freund, O ‘Matrimonial property in England’ in Friedmann, W (ed) Matrimonial Property Law (London: Stevens and Sons, 1955) pp 267–268.Google Scholar

2. Note that many spouses obtain a judicial separation and associated ancillary relief pursuant to the Family Law Act 1995 prior to obtaining a divorce. Given the broad similarities between the remedies on divorce and judicial separation, many of the issues highlighted in this paper arise in both contexts. Moreover, the proposal delivered below could, with minimal tweaking, be adopted at both stages. However, a fuller discussion of the issues and challenges arising on judicial separation, specifically, is outside the scope of this paper.

3. The financial proceedings that accompany divorce (or judicial separation) cases in Ireland are referred to as ‘ancillary relief’ proceedings. Note that in England, pursuant to the Family Procedure Rules 2010, ‘ancillary relief’ cases have been retitled ‘financial remedy’ cases: see r 2.3 for interpretation.

4. See Art 41.3.2° of the Irish Constitution.

5. Buckley, La ‘Irish matrimonial property division in practice: a case study’ (2007) 21 Int'l J L Pol'y & Fam 48.CrossRefGoogle Scholar

6. Buckley, La ‘Financial provision on relationship breakdown in Ireland: a constitutional lacuna’ (2013) 36 Dublin U L J 59 at 60.Google Scholar

7. See Buckley, above n 5; Crowley, L ‘Dividing the spoils on divorce: rule-based regulation versus discretionary-based decision’ (2012) Int'l Fam L 388.Google Scholar

8. Buckley, above n 5, at 61. In 2012, 858 judicial separations were ordered and 2892 divorces were ordered: see Court Service ‘Annual report 2012’; available at http://www.courts.ie/Courts.ie/library3.nsf/(WebFiles)/87BE463114EF96FF80257BA20033953B/$FILE/Courts%20Service%20Annual%20Report%202012.pdf (accessed 28 April 2014) p 49.

9. Crowley, above n 7, at 395.

10. Family Law (Divorce) Act 1996, s 16.

11. Crowley, above n 7, at 395.

12. Crowley, L Family Law (Dublin: Round Hall, 2013) p 589.Google Scholar

13. Crowley, above n 7, at 396.

14. Ibid, at 395.

15. See Court Service Family Law Matters (2007–2009) vol 1(1) 2; available at http://www.courts.ie/courts.ie/library3.nsf/pagecurrent/DBF7DEC660A62D3880256DA60052BC9D?opendocument&l=en (accessed 21 June 2012). Although the Court Service Annual Reports note considerably higher figures for full hearings, if one aspect of a case goes to full hearing, with all other issues, including property division and the destination of the family home settled, the case will be recorded as being disposed of with a full hearing and a settlement. Therefore, it is likely that full hearings in relation to property will continue to be quite low. For a detailed analysis of how, when and why people settle in England and Wales, see Hitchings, E, Miles, J and Woodward, H Assembling the Jigsaw Puzzle: Understanding Financial Settlement on Divorce (2013); available at http://www.bristol.ac.uk/law/research/researchpublications/2013/assemblingthejigsawpuzzle.pdf (accessed 8 October 2014).Google Scholar

16. Parkinson, P ‘Reforming the law of family property’ (1999) 13 Australian J Fam L 117.Google Scholar

17. See Durcan G SC ‘Reimaging the family court system’ delivered at the ‘Seminar on Family Law Courts’>; available at http://www.justice.ie/en/JELR/Mr.%20Gerard%20Durcan,%20S.C..pdf/Files/Mr.%20Gerard%20Durcan,%20S.C..pdf (accessed 1 October 2014).

18. R O'Shea Judicial Separation and Divorce in the Circuit Court (PhD thesis, Waterford Institute of Technology, 2014); available at http://repository.wit.ie/2825/ (accessed 29 September 2014).

19. Ibid, p 131.

20. Ibid, pp 131–132.

21. Ibid, pp 131–132.

22. Ibid, p 261. Of the 13 judges observed, only three clearly worked from the presumption of 50/50 sharing.

23. Ibid, p 266.

24. Buckley, above n 5. Of the 44 solicitors, 13 were Legal Aid solicitors. Participating solicitors were invited to examine a number of their most recently completed divorce and separation files and to provide data for a detailed questionnaire.

25. Ibid, p 78.

26. Ibid, p 68.

27. T v T [2002] 3 IR 334 at 413 per Fennelly J.

28. Miles, J ‘ Charman v Charman (No 4) – making sense of need, compensation and equal sharing after Miller/McFarlane’ (2008) 20 Child & Fam L Q 378 at 387.Google Scholar

29. Crowley, above n 7, at 397 (emphasis added).

30. Ibid, at 397. She adds at 400 that ‘inconsistent rulings in relatively similar circumstances cause immense dissatisfaction with the overall regime and can prompt discontent amongst those it seeks to regulate’.

31. Walls, M ‘Meaningful change in our family courts – meeting the needs of the people who use them’ (2013)Google Scholar; available at http://www.inis.gov.ie/en/JELR/Ms.%20Muriel%20Walls,%20Solicitor%20and%20Chairperson_Legal%20Aid%20Board.pdf/Files/Ms.%20Muriel%20Walls,%20Solicitor%20and%20Chairperson_Legal%20Aid%20Board.pdf (accessed 2 October 2014). The Law Commission for England and Wales, in Matrimonial Property, Needs and Agreements (Law Comm no 434, 2014) para 3.5, noted its ‘concern’ over the inconsistency in that jurisdiction ‘particularly if it gives rise to “forum shopping” ’.

32. Buckley, above n 5, at 78.

33. Ibid, at 78.

34. O'Shea, above n 18, p 271 noted that in her research mediation was the only form of Alternative Dispute Resolution referred to in the courts and discovered that it ‘is a very rare phenomenon at any stage of the process post the break-down of the marriage’.

35. Ibid, p 205.

36. Scherpe, J ‘Marital agreements and private autonomy in comparative perspective’ in Scherpe, J (ed) Marital Agreements and Private Autonomy in Comparative Perspective (Oxford: Hart Publishing, 2012) p 476. In this regard, women are considered particularly vulnerable:Google Scholar see Weitzman, L The Divorce Revolution (New York: Free Press, 1985) pp 310–318.Google Scholar

37. Dewar, J ‘Reducing discretion in family law’ (1997) 11 Australian J Fam L 309.Google Scholar

38. See O'Shea, above n 18, ch 11.

39. Coulter, C Family Law in Practice: A Study of Cases in the Circuit Court (Dublin: Clarus Press, 2009) p 106.Google Scholar

40. J Peart ‘Mediation – alternative dispute resolution – the future?’, delivered to Mediation Solutions North West (24 February 2012) (emphasis added). Therefore, while it is broadly considered that a low level of contested cases shows a well-operating system, the reality for many financially weaker spouses is that a court application is not an option due to the expense it involves. Although Legal Aid is still currently available to individuals whose disposable income is less than €18,000 in Ireland, many spouses in low-paid jobs will be ineligible: see Coulter, above n 39, p 112. See also O'Shea, above, n 18, p 206.

41. Parkinson, above n 16.

42. Ibid, at 94.

43. Buckley, above n 5, at 73 (emphasis added).

44. O'Shea, above n 18, pp 92– 93. While situations may arise that could operate to the detriment of the financially stronger spouse, such as where the financially stronger spouse's wish to divorce is more urgent, thereby making them more vulnerable to a big payout, even there the financially stronger spouse may be aware of the judge's tendency not to review settlements and work on this basis and/or the financially weaker spouse's financial needs may simply prohibit them from pursuing the case to seek the exercise of judicial discretion.

45. Sir Maine, H Ancient Law: Its Connection with the Early History of Society, and its Relation to Modern Ideas (London: John Murray, 1875) p 63.Google Scholar

46. More predictability would be provided by the judicial development of clear principles: see Crowley, L ‘Irish divorce law in a social policy vacuum – from the unspoken to the unknown’ (2011) 33(3) J Soc Welfare & Fam L 227 CrossRefGoogle Scholar; and Coulter, above n 39, p 107. However, ideally, it is submitted that more radical legislative reform would be preferable to ensure a coherent and comprehensive scheme exists.Google Scholar

47. Brake, Sj ‘Equitable distribution vs fixed rules: marital property reform and the Uniform Marital Property Act’ (1982) 23(3) BC L Rev 761 at 773. For arguments supporting a rule-oriented approach,Google Scholar see Glendon, Ma ‘Fixed rules and discretion in contemporary family law and succession law’ (1985) 60 Tul L Rev 1165. For a contrary view,Google Scholar see Harris, Pg ‘Financial orders after divorce: a category error’ (2012) 42 Fam L 860.Google Scholar

48. Brake, above n 47, at 763.

49. For an overview of the historical development of ancillary relief provision in Ireland, see Crowley, above n 46.

50. See above.

51. Indeed, the inclusion of some discretion is, in any case, preferable to rigid rules and flexibility is incorporated in some format in the ancillary relief scheme of almost every jurisdiction: see Crowley, above n 7; Scherpe above n 36. Furthermore, it has been suggested that issues regarding the separation of powers could arise if the role of the judiciary is removed completely:Google Scholar see Crowley, L ‘Equal versus equitable division of marital assets – what can be learned from the experiences of other jurisdictions? Part Ii’ (2007) 10(2) Irish J Fam L 12.Google Scholar

52. See Buckley, La ‘Matrimonial property and Irish law: a case for community’ (2002) 53 Northern Ireland L Q 39;Google Scholar Crowley, ibid; O'Connor, P Key Issues in Irish Family Law (Dublin: Round Hall, 1988) pp 201–214.Google Scholar

53. See Dáil Deb, 23 March 1994, vol 440, cols 1097–1098 per Deputy McDowell. See also Shatter, Aj Family Law (Dublin: Butterworths, 4th edn, 1997) p 839.Google Scholar

54. See Art 40.1.1° of the Irish Constitution.

55. See Crowley, L ‘Equal versus equitable division of marital assets – what can be learned from the experiences of other jurisdictions? Part I’ (2007) 10(1) Irish J Fam L 19;Google Scholar Buckley, above n 52.

56. What the required triggering event(s) would be would be a matter for the legislature to specify.

57. See Buckley, above n 52, at 71; Buckley, above n 6.

58. Note that the legitimacy of the current redistributive powers was confirmed in TF v Ireland [1995] 1 IR 321 and again in LB v Ireland [2006] IEHC 275, [2008] 1 IR 134.

59. Although this proposal draws inspiration from a number of sources, most notably past and present regimes applied in British Columbia, Canada (see the Family Relations Act 1996 and the Family Law Act 2011), the proposal is novel and does not replicate any existing regime.

60. See above n 52.

61. For an early argument to this effect, see Weitzman, L The Divorce Revolution (New York: Free Press, 1985) pp 70–109. Although in the interim her statistics have been subject to some criticism,Google Scholar Crowley, above n 7, at 391 notes ‘it appears well-established that the economic consequences of divorce are significantly worse for long-term homemakers and their children than they are for the breadwinner spouse’. See also Weitzman, L and Maclean, M (eds) Economic Consequences or Divorce (Oxford: Oxford University Press, 1992).Google ScholarPubMed

62. McGinnity, F et al Winners and Losers? The Equality Impact of the Great Recession in Ireland (Dublin: Equality Authority and the Economic and Social Research Institute, 2014) p 27. This research drew on the findings of the Survey on Income and Living Conditions for 2010.Google Scholar

63. Ibid, p 27.

64. Ibid, p 11. The ‘strong negative effects’ of the presence of pre-school children on the probability of participation of the mother continue to be observed:see Russell, H et al A Woman's Place: Female Participation in the Irish Labour Market (Dublin: Equality Authority and Economic and Social Research Institute, 2012), p 39. AsGoogle Scholar Miles, above n 28, at 391 explained, ‘formal equality … neglects the parties' respective earning capacities – 50% plus substantial earning power is self-evidently better than 50% and no earning power’.

65. Or perhaps is currently achieved.

66. Scherpe, above n 36, p 476.

67. Ibid, p 476.

68. See SD v BD [2007] IEHC 492 and T v T [2002] IESC 68. See also Moore, E ‘The significance of “home-maker” contributions upon divorce’ (2007) 10(1) Irish J Fam L 15 Google Scholar, who noted that although ‘the judiciary recognises the role of the women in the home, this recognition has different implications for women with different levels of education. The beneficiaries were women who were in a position to adopt a professional working life. However, women with fewer educational advantages, who will remain in the home after marital breakdown, are not rewarded equally by the judiciary.’ Therefore, poorer outcomes for home-makers appeared to be attributed to a failure to value domestic contributions rather than issues connected with relationship-generated loss and compensation.

69. British Columbia Law Reform Commission Property Rights on Marriage Breakdown, Working Paper (no 63, 1989) IV(B)(5)(a).

70. Scherpe, J and Miles, J ‘Property and financial support between spouses’ in Eekelaar, J and George, R (eds) Routledge Handbook of Family Law and Policy (Oxford: Routledge, 2014) p 145 Google Scholar, referring to Council Regulation (EC) 4/2009, which was transposed into Irish law with European Communities (Maintenance) Regulations 2011. For more, see Crowley, above n 12, pp 767–773. For an overview of how such a pillared approach operates in practice, see A Dutta ‘Germany’ in Scherpe, above n 36, pp 158–200, esp pp 158–166. To some extent, a similar approach also seems to apply in certain Canadian provinces: see eg the Family Law Act 2011 applied in British Columbia.

71. These influencing factors were clearly implied in the Law Commission for England and Wales report, above n 31, ch 8.

72. For a list of civil law jurisdictions adopting such an approach, see Scherpe, above n 36, p 449. A similar scheme is also applied in a number of US states and Canadian provinces, and was mooted by the Law Commission for England and Wales Matrimonial Property, Needs and Agreements – a Supplementary Consultation Paper (SCP no 208, 2012).

73. See below.

74. A similar category of assets is also subject to sharing in Austria, Singapore, New Zealand and, albeit to a lesser extent, Scotland: see Scherpe, above n 36.

75. Special protection is already afforded to the family home by s 56 of the Succession Act 1965, which allows for the appropriation of the home by the surviving spouse on the death of the owner-spouse in certain circumstances, and s 3 of the Family Home Protection Act, which restricts the unilateral disposition of the home: see below. See also Law Commission for England and Wales, above n 31, para 8.32.

76. Burgoyne, C and Sonnenberg, S ‘Financial practices in cohabiting heterosexual couples: a perspective from economic psychology’ in Miles, J and Probert, R (eds) Sharing Lives, Dividing Assets (Oxford: Hart Publishing, 2009). It is likely that similar trends would be evident in Ireland.Google Scholar

77. See Law Commission for England and Wales, above n 31, paras 8.51–8.56.

78. This would appear to reflect current Irish policy. Crowley, above n 12, p 631 notes that, ‘The courts have shown themselves willing to make orders in respect of a business or farm owned by one spouse, or at least award a share of the value of the business to the non-owning spouse based on the spousal contributions in the course of the marriage.’ Vis-à-vis pensions, see O'Shea, above n 18, p 69. A similar test was applied in British Columbia, Canada pursuant to s 59(2) of the Family Relations Act 1996.

79. No link would need to be evidenced between the actual indirect contributions and the business. However, contributions would be subject to the de minimus principle.

80. The exclusion of such assets is ‘becoming increasingly common in common law jurisdictions’: see Scherpe and Miles, above n 70, p 144. Moreover, in an Irish context, inheritance can be a factor in whether or not assets ought to be divided – see C v C [2005] IEHC 276 – although it is usually only relevant where assets exceed needs.

81. Eekelaar, J ‘Asset distribution on divorce – time and property’ (2003) Fam L 828.Google Scholar

82. Having an incremental scale (for quasi-family assets) would seem to fit with the approach of the Irish courts as identified by O'Shea, above n 18, p 121, where she noted, ‘The Circuit Court did generally recognise the contributions of the wife, in accordance with Art 41.2.1, where there were children and a long-term marriage.’ Note that although this approach would also fit with the contribution-based rationale for sharing assets pursuant to this proposal, it would not be appropriate in the sharing of family assets, which is justified by the partnership view of marriage.

83. See Cooke, E, Barlow, A and Callus, T Community of Property: A Regime for England and Wales? (London: Nuffield Foundation, 2006) pp 34–38.Google Scholar

84. Somewhat similarly, albeit in reverse, see s 9 of the Family Law (Scotland) Act 1985, which expressly identifies statutory criteria that must be satisfied in order to justify making any financial order, as discussed in Crowley, above n 7, at 391–394.

85. See Cooke, E ‘Miller/McFarlane: law in search of discrimination’ (2007) 19 Child & Fam L Q 98 at 101. However, it is submitted that in most cases such contributions would be considered equal.Google Scholar

86. What these criteria are would have to be carefully considered and would, no doubt, be reflective of the overall policy direction of any such reform. One ground for departure that is included in a number of jurisdictions is if there was a considerable disparity in the value of the assets held by each spouse at the end of the relationship.

87. Although the scope of the community for sharing might, in larger-value cases, appear somewhat conservative, it is submitted that such an approach is more in line with the development of matrimonial property law in Ireland to date, which has been built on incremental progress towards entitlement-based provision. For general discussion of the movement of family law from a welfare-based approach to an entitlement-based approach, see Eekelaar, above n 81.

88. An opt-out clause is already in place in Irish matrimonial property law, as it is possible to contract out of an entitlement to the legal right share: see s 113 of the Succession Act 1965.

89. For discussion of the current Irish position on pre-nuptial agreements, see L Crowley ‘Ireland’ in Scherpe, above n 36, pp 200–229; Crowley, above n 12, pp 567–573; Buckley, La ‘Ante-nuptial agreements and “proper provision”: an Irish response to Radmacher v Granatino ’ (2011) 14(1) Irish J Fam L 3.Google Scholar

90. See Ellman, I ‘The theory of alimony’ (1989) 77 Cal L Rev 1.CrossRefGoogle Scholar

91. Pursuant to s 91(2) of the Constitution Act 1867, marriage and divorce are within federal jurisdiction in Canada.

92. Rogerson, C and Thompson, R ‘The Canadian experiment with spousal support guidelines’ (2011–2012) 45 Fam L Q 241 at 246.Google Scholar

93. Spousal support orders ought to: ‘(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time’.

94. Rogerson and Thompson, above n 92, at 247.

95. C Rogerson Developing Spousal Support Guidelines in Canada: Beginning the Discussion (December 2002); available at http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ss-pae/index.html (accessed 8 January 2015). See also Gordon, M ‘Spousal support guidelines and the American experience: moving beyond discretion’ (2002) 19 Can J Fam L 247. Much of this confusion arose from the conflicting decisions ofGoogle Scholar Pelech v Pelech [1987] 1 SCR 801; Moge v Moge [1992] 3 SCR 813; and Bracklow v Bracklow [1999] 1 SCR 420.

96. The guidelines were the result of a 7-year project directed by Professors Carol Rogerson and Rollie Thompson.

97. See the Department of Justice Canada Spousal Support Advisory Guidelines (July 2008); available at http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/pdf/SSAG_eng.pdf (accessed 2 October 2014).

98. Rogerson, C ‘Child support, spousal support and the turn to guidelines’ in Eekelaar, and George, (eds) above n 70, p 159.Google Scholar

99. For a detailed discussion of the various principles that may underpin spousal support provision, see Law Commission for England and Wales, above n 31, ch 3.

100. The amount and duration of support increases incrementally with the length of the marriage.

101. The need for software causes specific problems for those litigants who do not have legal representation. Solutions are being sought, as noted in Rogerson and Thomson, above n 92, at 266; however, it is hoped that free online software will become available to complete these calculations.

102. These may include illness, disability, disproportionate losses or gains in a short marriage etc.

103. Rogerson and Thompson, above n 92, at 242.

104. Rogerson, above n 98, p 162. Only 8 months after the release of a draft version of the guidelines in 2005, they were described as a ‘useful tool’ by the British Columbia Court of Appeal, one of the largest provinces in Canada: see Yemchuk v Yemchuck [2005] BCCA 406 per Prowse J. For a recent analysis of the guidelines, see Thompson, R ‘To vary, to review, perchance to change: changing spousal support’ (2012) 31 Can Fam L Q 355.Google Scholar

105. Rogerson and Thompson, above n 92, at 263.

106. Note that it has been observed, ‘Canadian law has been shaped by the public policy goal of ameliorating the negative economic consequences of separation and divorce experienced primarily by women and children.’ Rogerson, C ‘Child and spousal support in Canada: the guidelines approach part 2’ (2012) 1 Irish J Fam L 18. For a clear exposition of the challenges faced by women on divorce in Canada,Google Scholar see R Leckey ‘Families in the eyes of the law: contemporary challenges and the grip of the past’, research paper prepared for the Institute for Research on Public Policy; available at http://irpp.org/research-studies/choices-vol15-no8/ (accessed 8 January 2015). Similar challenges appear to exist in Ireland: see above.

107. Rogerson, above n 106.

108. Rogerson and Thompson, above n 92, at 262. Prior to the introduction of the guidelines, it was observed that, ‘The lack of certainty, predictability and consistency in the law, not to mention realities such as clients' limited resources, lack of legal aid and personal circumstances such as an imbalance in bargaining power, made spousal support claims frequently unadvisable or impractical in some regions.’ See Canadian Bar Association ‘Spousal support advisory guidelines’ (May 2007); available at https://www.cba.org/cba/submissions/pdf/07-29-eng.pdf (accessed 8 January 2015) p 2.

109. For a full analysis of the strengths and weaknesses of the SSAG, see Rogerson and Thompson, above n 92.

110. The Canadian guidelines are preferred here to the American Law Institute's equivalent due to the more flexible format of the former: see American Law Institute Principles of the Law of Family Dissolution: Analysis and Recommendations (2002). For example, the Canadian guidelines result in a suitable range of outcomes while the American Law Institute guidelines produce a single-figure outcome.

111. Scherpe and Miles, above n 70, p 149.

112. Law Commission for England and Wales, above n 31, para 1.29.

113. Although in Canada, the Spousal Support Advisory Guidelines are non-statutory in nature, they have received appellate court approval and are widely applied. However, in an Irish context, it is suggested that given the cautious approach adopted by the judiciary vis-à-vis ancillary relief and the attachment of many of the judiciary to wide-ranging discretion, it would be better to have such guidelines on a statutory basis. Note also that O'Higgins J in MP v AP [2005] IEHC 326 did note ‘although the maintenance agreed between the parties was adequate, it would be wrong to ignore the huge disparity in income between the parties’ (emphasis added).

114. O'Shea, above n 18, p 510 found that where an ongoing payment was made, 60% had €50 per week spousal maintenance, suggesting that trends may be apparent in the courts. Moreover, the inclusion of guidelines akin to those in Canada, incorporating the ‘merger over time’ theory, notably where there are no children, would fit with the temporal accretion model proposed for quasi-family assets.

115. Rogerson, above n 98, at 157.

116. The incorporation of such a formulaic approach would also counteract the difficulties observed in O'Shea, above n 18, p 132, where it was noted that the ‘over-riding basis of evaluation’ for child and spousal maintenance was ‘the need of the primary carer of dependent children of the marriage’, with no attempt made to balance the needs of payor spouse with dependent spouse.

117. See JD V DD [1997] 3 IR 64. See also Murray J in T v T [2002] 3 IR 334 at 407. However, see G v G [2011] IESC 40, where the Supreme Court noted that although ‘Irish law does not establish a right to a “clean break” …. it is a legitimate aspiration’.

118. This ability to reconfigure the overall package is important in light of empirical evidence that demonstrates the desire of many Irish couples to include some element of clean break, by capitalising the value of the support or pension payments or converting such relief into an interest in property where possible: see Courts Service, above n 15. See also Buckley, above n 5. Such ‘restructuring’ is also possible in Canada: see Rogerson, above n 106.

119. Buckley, above n 52, at 74. This fear was also highlighted by Dewar, above n 37, at 309.

120. See Family Law (Divorce) Act 1996, s 15(2)(b).

121. Where there are dependent children, the award of exclusive occupation, as Miles notes, is really ‘an aspect of provision for the child rather than for the spouse’: see Law Commission for England and Wales, above n 31, para 3.45. Where there are no children, but a spouse wishes to remain in the home, such an order could be made in full or partial satisfaction of the recipient spouse's entitlements under the proposal. In order to ensure an accurate valuation of the benefit arising from the order, actuarial calculations would have to take place. Alternatively, if such an order was made in addition to the spousal support and property entitlements of the recipient spouse, and not as part of a reconfigured package, it would represent additional provision on the basis of need.

122. O'Shea, above n 18, p 175. Crowley, above n 12, p 632 notes, ‘it is well settled that where there are younger children and where it is financially permissible, that the parent with custody should remain in the family home’.

123. For analysis of the importance of objective-driven discretion, see Crowley, above n 7.

124. See Ellman, above n 90; Miles, above n 28.

125. Parkinson, P ‘The yardstick of equality: assessing contributions in Australia and England’ (2005) 19 Int'l JL Pol'y & Fam 163 at 174. Moreover,CrossRefGoogle Scholar see Miles, above n 28, at 389, who notes, ‘[I]n ordinary cases, the fact that the parties’ needs will be determinative may make notionally starting at 50:50 appear pointless. Even here, however, there may be something intangible (and, more concretely, an enhancement of bargaining position) to be gained from the idea that each party is prima facie entitled to an equal share of the capital and that a non-owner applicant is not merely a ‘needy supplicant’ (emphasis in original).

126. While needs are legitimately prioritised in many cases, the entire provision made can be interpreted as being needs-based, diminishing the value of the martial partnership or the contributions made. This proposal seeks to rectify this perception.

127. [2002] IESC 68, [2003] 1 ILRM 321. This seems to fly in the face of ‘the almost universal understanding that certain assets should be shared equally on divorce’, as noted in Scherpe and Miles, above n 70, p 152. See also Buckley, La ‘ “Proper provision” and “property division”: partnership in Irish matrimonial property law in the wake of T v T ’ (2004) 3 Irish J Fam L 9 at 11.Google Scholar

128. [2011] IESC 40 [22]. The court went on to explain at [25], ‘Proper provision means that the provision is reasonable in all the circumstances.’

129. Scherpe, above n 36, p 465. See also Crowley, above n 89, at 210.

130. [2002] IESC 68, [2003] 1 ILRM 321. See also GB v AB [2007] IEHC 491.

131. [2012] IEHC 461 at [13].

132. Buckley, above n 6, at 86 (emphasis added).

133. Pursuant to s 3, the written consent of the non-owning spouse is required for the conveyance of any interest in the family home, subject only to limited exceptions. Indeed, demonstrating the general feeling at the time, upon the introduction of the Family Home Protection Bill, Senator Robinson described it ‘as an interim measure on the road to a proper and just system of co-ownership of the matrimonial home’. Seanad Deb, 1 July 1976, vol 84, col 923. For more, see O'Sullivan, K ‘Protection against the unilateral disposition of the family home: an Irish perspective’ (2013) 27(3) Int'l J L Pol'y & Fam 399.CrossRefGoogle Scholar

134. See O' Sullivan, K ‘Spousal disinheritance protections under Irish law: a proposal for reform’ (2012) 41(3) Common L World Rev 246 at 254–257 for discussion of the rationale for the provision of the legal right share.Google Scholar

135. Buckley, above n 127. However, s 7 of the 1993 Bill permitted a married couple or a couple contemplating marriage to opt out or exclude the application of s 4.

136. Report of the Commission on the Status of Women (Dublin: Stationery Office, 1972) p 175.Google ScholarPubMed

137. Report of the Second Commission on the Status of Women (Dublin: Stationery Office, 1993).Google Scholar

138. Seanad Deb, 27 October 1993, vol 137, col 1539.

139. Seanad Deb, 27 October 1993, vol 137, col 1540.

140. See Report of the Second Commission on the Status of Women, above n 137, p 39.Google Scholar See also Buckley, above n 52, at 68.

141. See Dewar, above n 37.

142. Therefore, despite development of a sharing principle in England and Wales since White v White [2001] 1 AC 596, the Irish system, overall, may in fact be closer to a community of property style regime than our neighbours across the Irish Sea.

143. Maclean, M and Eekelaar, J ‘The perils of reforming family law and the increasing need for empirical research, 1980–2008’ in Miles and Probert, above n 76, p 26.Google Scholar

144. Dewar, J ‘Property and superannuation reform in Australia: a danger averted, or an opportunity missed?’ (2000) 3(1) Irish J Fam L 2.Google Scholar

145. Martin, F ‘The changing face of family law in Ireland’ (2005) 5(1) Jud Stud Inst J 16 at 33.Google Scholar

146. See Courts Service Courts Service News (2011) 13(3) 9; available at http://www.courts.ie/Courts.ie/library3.nsf/(WebFiles)/ADF65460532B82B38025795E0058CC3F/$FILE/CSN%20Volume%2013%20Issue%203%20December%202011.pdf (accessed 21 June 2012).

147. Shatter, above n 53, p 836. However, these comments were directed at the Report of the Second Commission on the Status of Women, above n 137, which sought an automatic joint ownership of family home.

148. Buckley, above n 52, at 71.