This week's family law judgments in the UK bring English law closer to existing Irish family legislation, writes Carol Coulter, Legal Affairs Correspondent.
More than 10 years have passed since the divorce referendum, and memories of that divisive debate have faded. However, it is worth recalling the fears evoked on behalf of stay-at-home wives who, it was claimed, would find themselves abandoned and penniless as irresponsible husbands traded them in for newer models.
The "clean break" divorce model existing in Britain was cited as an example of what would happen.
As a result the model of divorce introduced into Ireland by that referendum, and by the legislation that followed it, incorporated measures to protect dependent spouses and their children. It introduced the concept of "proper provision" for them, taking into account factors including the contributions made by each party to the marriage, and its length.
This has subsequently been interpreted by the Irish courts in a way that compensates wives who stayed at home to look after children with a substantial portion of their husband's assets on divorce. If they gave up promising careers to do so, that was also taken into account.
This principle has now been adopted by the English courts in the McFarlane case decided on Wednesday. There, a wife who gave up a successful career as a solicitor to care for her husband and the three children of the marriage while her husband rose the corporate ladder as an accountant will receive £250,000 (€366,000) a year for life in maintenance, as well as the family home.
This contrasts with the usual provision for "clean break" divorce. In this case the assets of the marriage were not sufficient to provide for the income to which Ms McFarlane felt she was entitled, having supported her husband in building his career. However, he had a substantial salary of £750,000 (€1.1 million) a year, and she is to receive a third of it, unless he returns to court in the future with a once-off offer that could match it in real terms.
English law is not binding on Irish courts, but it does have persuasive value, and in family law English cases are often cited in support of one side or the other. It is unlikely, however, that anything in the McFarlane judgment will upset provisions made by Irish courts.
The Miller case, also decided on Wednesday, is different, in that Ms Miller was awarded £5 million (€7.3 million) of her husband's assets though the marriage had lasted less than three years and they had no children. She had given up work to try to start a family, but had a miscarriage and no further pregnancy. Although a very substantial sum, the £5 million is less than one-sixth of Mr Miller's total wealth.
However, this award is likely to send a shiver down the spines of wealthy Irish men who are entertaining doubts about short marriages in which there are no children. Others contemplating marriage may hesitate.
"Getting married is a very significant event," said Muriel Walls, a family law specialist with McCann Fitzgerald solicitors. "Here the Chief Justice said in the T case that when you get married, the 'I' becomes a 'we'. You adjust your life and go forward as a couple. Marriage in itself means that there will be a very significant impact if it goes astray."
This may give an impetus to the drawing up of prenuptial agreements between couples intending to marry, especially if one or both has considerable assets or earnings, she said. But they have no standing in Irish law and no court has, as yet, ruled on one here.
"More people are making inquiries about them. The best advice we can offer them is that they may be an influence on the court. They have a better chance of being taken into account if it is a short marriage."
The impact of these judgments in Ireland is likely to vary according to the different judges in the higher courts who consider them, according to Geoffrey Shannon, head of the family law department in the Law Society. However, they would undoubtedly feed into settlement negotiations, he said.
He also said that in one respect, the law in England was now in advance of that in Ireland, in that it took account of future earnings. This could give impetus to wealthy individuals who could afford to do so to establish residence in another jurisdiction for the purpose of obtaining a divorce. Under the EU "Brussels ll bis" regulation they could seek a divorce after a year's residence in another EU state, and a wife might now do better by pursuing a divorce in the UK, he said.