December 10, 2020 by Robert Franklin, JD, Member, National Board of Directors
In Ireland, there’s currently a plaintive call for the reform of spousal maintenance and, if this article’s accurate, it can’t come any too soon (Irish Times, 11/28/20).
It was just 25 years ago that the Irish Constitution was amended to permit divorce and since then divorce has been pretty rare. In a population of about five million, Ireland had only about 3,500 divorces. That’s less than one-third the divorce rate of the U.S.
Still, the Irish system of divorce is not only out of step with the times, it’s out of step with itself. That’s nowhere as apparent as in its approach to spousal maintenance. The law on maintenance was passed 20 years before the constitutional amendment allowing divorce and hasn’t changed since. That law presumes that one spouse will indefinitely support the other regardless of the status of their marriage.
“In the context of divorce, what you have is the marriage ceases, but your obligations continue indefinitely,” [solicitor Geoffrey Shannon] says. “No single concept alone can govern the system of maintenance, yet we have a system where the focus is on lifelong spousal maintenance.”
Now, in a country that frowns on divorce, encouraging lower-earning spouses to divorce doesn’t make much sense. That’s what I meant by the system being out of step with itself. It’s also out of step with common sense. Married adults make the societies in which they live generally healthier, happier, more productive, more law-abiding, etc. So healthy public policy discourages divorce. But offering lifetime financial incentives to divorce does the opposite. It’s not sensible public policy. And of course the awareness of the possibility of having to pay spousal maintenance in the event of divorce tends to discourage marriage in the first place, again, not a sensible policy.
As to being out of step with the times, Shannon has this to say:
“Really what I am saying is that the payment of maintenance between former spouses should facilitate a smooth transition from dependence to economic independence, ensuring that the dependent spouse is provided for until he or she is self-sufficient.”
Right. I’ve made the same point many times. This is the 21st century. There is no impediment in Ireland to any adult’s supporting themselves and, where possible, they should do so. No healthy adult should be able to permanently depend on another person for support. Yes, there are exceptions. Some people are severely disabled or too elderly to work at gainful employment. In those situations, some spousal maintenance can be said to be fair.
But Irish law contains no restrictions on who must pay or for how long.
A couple might only be married for four or five years, and have no children, yet the Irish system presumes the possibility of one spouse having a lifelong financial obligation towards the other.
In that, the state systems governing alimony in the U.S. are a cut above the Irish one, but we needn’t be smug. Our laws governing spousal maintenance need a complete overhaul to reflect much of what Shannon described. Alimony should be the rare exception. Healthy adults need to support themselves, their children and, if necessary, their parents in old age, but not an ex-spouse who doesn’t like them enough to live with them. Again, it’s the 21st century; adults need to start acting like adults and sensible alimony reform would encourage them to do so.