Possible outcomes in marital breakdown

When you are in the middle of an upheaval such as the ending of a relationship or marriage, you crave certainty in an uncertain world. One of the most difficult things for emotionally traumatised clients to learn from their solicitor is the uncertainty of outcomes in family law cases. While some certainty is desirable, viewed from another perspective, this may well be a strength in the Irish family law system. If it were possible to sit down and calculate with mathematical certainty the outcome of family law disputes, the need for a creative and flexible approach, compassionate analysis and attention to the inherent varying circumstances in each case, would disappear and our system would be greatly impoverished as a result. The alternative is not a “free for all”. There are well established guidelines to which individual judges must have regard laid down in statute (i.e., the Family Law Act 1995 and The Family Law ( Divorce) Act 1996) and by way of precedent (i.e., judgements handed down by courts). However, because our family law system operates under cover of the in camera rule (a term which denotes the privacy of family law proceedings i.e., no public allowed which extends even to concerned family law members not directly involved and covers the manner of reporting in such cases) the public’s familiarity with this area of law and its manner of administration is not what it should be in a democracy. However, some light has now shone into this darkness and in particular recent research provides us with a welcome insight into how the family law courts are operating in practice. Custody and access are often the most vexed issues in a family law case. From a solicitor’s point of view, they are the most difficult to manage as, understandably, emotions run high when it comes to these issues. The overall and abiding principle by which the court must be guided is “the best interests of the children”. Easy to say but hard to apply. Often, judgements, which can seem harsh when viewed against the backdrop of husband versus wife, can make a lot more sense when the children are put into the balance. With their best interests in mind, courts will want children to have security of residence if at all possible, continuity in schooling and access to friends, family and finance to enable them to continue their education and be properly cared for with as much continuity and stability as possible. This does not mean that children will never have to leave their home but it does mean that the preference of the court is to try and ensure that they will not have to leave their home if at all possible bearing in mind the upheaval caused by the marriage breakup and not wanting to add to that, continued access to their schools where possible and to family and friends where that can be achieved. I think of most of us would agree that these are the best and most desirable outcomes for children where they are achievable and since the courts will act primarily to protect the children and secure their interests, this can have the unintentional effect of seeming to unjustly favour one spouse over the other. Quite often when a court is disposed to leave children in situ it means that where the assets are limited they must be given to the partner with whom the children are most likely to reside to ensure financial security, residence and continuity. How does the court decide with whom the children should reside? Recent research into the operation of the family courts would indicate that the courts will take into account the family arrangements prior to the separation in order to determine what is best for the children bearing in mind that their goal is going to be the least possible disruption (ie continuity and security) in their schedule in their best interests. When looked at from this perspective it makes sense out of why so many women get to stay in the family home with the children post separation and divorce. It is still the case that the vast majority of couples arrange their affairs so that it is the mother who is primarily responsible for the care and raising of children. Questions like, who generally organises the children’s clothes, sports gear etc., for school, gets them up and makes lunches and breakfasts for them and ensures that they get to school, ensures they have the right books and other gear for school, takes them to extra-curricula activities or arranges for them to get there, ensures play dates and parties are attended, remembers their school dates and tours and buys the presents for birthdays, who does homework with them and is the point of contact with other parents and the school. Generally speaking while Dads are much more involved now than they were 40 years ago in the day to day routine of their children, it is Mum who carries the primary responsibility. This does not mean that Dad has no role to play or he is not significant. Quite often men will do these routine tasks when time allows or when they are available from their work commitments, however, there is an enormous difference in doing these chores because you have no other option and doing them when you are able. Women will work part time, take less demanding career paths, limit their advancement or not work at all, to ensure permanent availability to their children.Invariably, it is the mother who will take time off work to tend to sick children, who is responsible for the after school runs and who organises and cooks the meals. Of course this is not always the case but it most often the case even now. In nearly 25 years of family law, I have never encountered a couple where the wife regularly went abroad to work, attend conferences or seek international business while the husband maintained a lower key job at home or worked part time and tended to the children. My experience of high flying couples is that they are both high flyers who retain staff to provide housekeeping and child care for their families. I have come across men who work in the home but usually only arising out of a job loss and a resultant decision to remain out of work rather than actually relinquishing a viable career to be more available to their children. I make these points not to be judgemental but to provide insight into how or why judges may reach certain conclusions. As a result of pre- separation arrangements, most children will have their main base or primary residence with their mother following separation and divorce. Despite the majority of children residing primarily with their mother’s post separation, in Ireland the majority of custody orders are joint custody orders. Custody refers to the day to day care and control of a child, the daily grind if you will.Very few sole custody orders are made now and in so far as they are made, recent research would show that they arise only where there is a risk to the children or where there has been parental desertion. Joint custody is understood as being a legal construct rather than a circumstance where the children are resident half time with each parent. However, a joint custody order would envisage both parents having residential time with the children though invariably less in the case of one than the other. It means that the children will reside with both parents but primarily with one parent. Only a minority of families post relationship breakdown can sustain a 50/50 caring and living arrangement as it requires a great deal of cooperation to be effective. Otherwise, it is a battlefield in which the children are smack in the middle. If this seems hard to fathom then perhaps I can put it in context. Some of the biggest complaints we get around the issues of access and custody post separation are: the children do not want to come with me and that is because my wife/husband is unfairly influencing them or when the children return from time with their father/mother they are unmanageable and disrespectful to me and this is because he/she badmouths me to them or the father/mother buys them rubbish to eat and does not discipline them so I get to be the bad parent because I have to pick up after this or she/he sends the children back from access with unwashed clothes and missing half the items they left with and then refuses to return them or when they arrive to my house they have no clothes and I have to buy them new clothes which if I send them back with them, I never see again, or she/he lets them do whatever they like when they are with him and in fact he/she is not actually spending quality time with them they are watching unsuitable tv/dvds all the time or with relatives, they have no discipline and she/he spends money on them to a degree which I cannot replicate and undermines my parenting regime. Imagine how much worse these complaints would be in a 50-50 situation where there was no trust, liking or cooperation? No judge is going to put children in the middle of that particular minefield unless he has persuasive evidence of trust and respect between the parents such as existing cooperation and flexibility which, by definition, will not be the case of those matters come before a Judge. Increasingly parents, and most especially Dads, are expressing a desire for shared parenting. It would be my wish that we would at least try and work towards a situation where such orders are at perhaps half of all orders made. That can only be achieved by recognition on the part of parents that there should be balanced parenting within the marriage and that this is as much as issue within the marriage as it is outside it. Furthermore, how they conduct their separation and divorce will determine outcomes in relation to their children. By definition if you appear in front of a judge on matters of access then it is clear that cooperation and trust are not features of your current relationship as parents. In those circumstances, it is highly unlikely that the court will impose a regime of anything resembling 50-50 parenting arrangements. As stated previously, it is far more likely to give limited access with a view to increases on an incremental basis in the hope that once the heat is gone out of the situation the parties will start to work together. However, cooperation does not come about by sitting waiting for it to happen, people have to want to do things in a civilised manner, have to want to work towards a state of cooperation and civility. There are professionals out there with the skills to help and not hinder but the desire to do things in a cooperative way has to come from the parties themselves. While it may not be possible to become best friends after a marital breakdown, it is possible to become cooperative colleagues with the assistance of various professional experts and a strong determination on the part of the parties themselves to arrive at that goal. Frankly, if a marriage is over it may not be desirable to become best friends in any event because as soon as one or other moves on to another intimate relationship this tends to undermine that friendship. To understand the term cooperative colleagues I would ask you to think about a work place where you have colleagues you get on well with in the work situation but you do not socialise with them and this is perhaps the most desirable and sustainable type of relationship to have with an ex- spouse. For those who would like to try and have the best outcomes for the family as a whole going forward, rather than any individual within it, then there are processes such as collaboration and advanced mediation techniques which are offered by specialised family lawyers and other dedicated family systems specialists. In general, the courts will take the view that the more conflict there is, the more need for structure rather than flexibility so as to keep the need to communicate to a minimum and try to minimise the effects on children. As long as people marry there will be marital breakdown and while I am not advocating planning for failure, I do think that common sense would indicate some degree of caution, advance planning and forethought on matters of parenting and expectations for children etc., while still married. Start as you mean to go on. All married parents are automatically guardians of their children and that remains the case whether the marriage breaks down or not. Sometimes the term “shared parenting” which is not a legal phrase in common usage in this jurisdiction, is used interchangeably with guardianship and very few people, who are not lawyers, mean the same thing by those two terms and so there is much confusion. Guardianship refers to those major decisions that all parents have to make in relation to the upbringing of their children, decisions about where they go to school, what religion, if any, they are raised in, medical treatment, and such like major decisions that relate fundamentally to a child’s wellbeing, it does not refer to the day to day decisions which are the decisions made by custodial parents. In Ireland, while married parents are automatically guardians of their children, unmarried fathers are not, and this is a most vexed subject. Unmarried fathers have to apply to be appointed guardians of their children to the court, if the parents cannot agree this for themselves. If they can agree it between themselves then they can simply fill out forms to that effect. Being on the birth certificate does not entitle you to any right of guardianship per se. In common with the manner in which the courts decide vexed access where there is an accusation that a parent is unfit as discussed above, a contentious application for Guardianship will be treated in the same manner ie the court will generally allow a “probationary” period of say 6 months before granting the application. The amount of time may vary but most Judges will decide such cases in this manner. There are very good reasons for changing the common use of the words “custody and access” not least because they are terms also used in the criminal system. How we name things is not irrelevant and while a “rose by any other name would smell as sweet” I do not think our understanding of it as a rose would be quite the same or even anything like the same. Custody and access are win and lose words and they are words associated with the law and the law is generally operated in an adversarial manner. Interestingly, the research shows that spousal maintenance, (i.e., where one spouse contributes income to support the other either by supplementing the lower earning spouse’s own income to bring it up to a standard, or to support them entirely so they do not have to work) is largely speaking a thing of the past. Child support, on the other hand, is pretty standard. Child support is not income tax deductible whereas spousal support is. Child support can last up to the age of 23 depending on whether or not children are in full time education. It therefore, has a time frame whereas spousal support can be life- long. Where a spouse has been entirely dependent on a reasonably high earning working spouse over a number of years, however, spousal support might be viewed somewhat differently. In the case of H v D, High Court in 2011 Judge Irvine said, “While the Respondent (wife) was very well qualified, in the present economic climate it could not be assumed that she could walk into a job tomorrow as she had practically no work experience for the past 10 years. There was also the problem of childcare.” This is a case where the option to pay maintenance for a number of years to enable the wife to return to work and having regard to the ages of the children might have been a worthy proposal in the circumstances. While the court will have regard to the economic climate where it affects a woman’s re-entry into the workplace, they will also have regard to the same climate as far as a man’s ability to provide long term is concerned. The days are gone when any relatively young woman can expect the court to take the view that there is no need for them to work at all regardless of previous circumstances. Obviously the older a woman is, the longer out of the workforce and the longer the marriage, the less likelihood that the courts will anticipate a return to work. Just as the best interests of the children is the paramount consideration for the courts when it comes to any issue concerning children, the guiding principle for the court in relation to a division of assets and financial support going forward is “proper provision”. The court must be satisfied that there is proper provision for both spouses depending on the circumstances of the family and their dependent children. This has a number of implications. One implication is that even when there is a settlement of a case, the court is still charged with looking at the terms of that settlement in order to be satisfied that “proper provision” has been made. Therefore, evidence has to be adduced and a case presented. This applies even to consent cases as in a consent divorce for example, as much as to settled cases which were up to the settlement contentious. It means that there always has to be a hearing of some sort in each and every case to enable the court to fulfil its statutory obligations and documentation prepared and filed which might be unnecessary in other jurisdictions, which in turn has implications from a costs point of view. Another implication of the term “proper provision” is, as decided in a recent case of YG v NG Supreme Court 2011, that it does not mean that there has to be a division of assets or a redistribution of wealth as such. Rather the court conducts a judicial exercise to look at the family circumstances as a whole and decide based on factors set down in the Act what constitutes proper provision. Such factors as earning capacity, income, property and the financial resources of each of the parties, their ages, their dependents and obligations, their standard of living, their lifestyle arrangements prior to separation, the contribution that each of them made to the marriage, their accommodation needs going forward and such like considerations have to be taken into account by the court in order to determine what is proper provision in each case.From a practical point of view this means that if the marital assets have a value of €5 million both spouses will not necessarily walk away with assets or income to the value of €2.5 million. It depends on how the assets were acquired, how long the parties were married, what each brought to the table and what responsibilities and dependents each of them has going forward, whether or not that would be a fair result. In Ireland, separation and divorce are generally a two- step process. A marriage breaks down and parties decide to separate and will generally want to sort something out at that stage. Most people will not want to wait the 4 years necessary to get a divorce before sorting out their affairs and accordingly, there may be two cases to be dealt with, the separation and then the divorce. There are cost implications of a significant nature in this and it discriminates against people of modest means. Be that as it may, for most people the possibility that either party can come back to court after a separation agreement or judicial separation order and look for what is euphemistically called “a second bit of the cherry” is too much to bear. This possibility arose because to permit divorce in Ireland we had to change our constitution and accordingly, when we introduced divorce it was a new cause of action. Technically, therefore, as it was a new cause of action, the same parties could apply for the same relief in a divorce as had been previously dealt with in a separation case. This meant that there could be no certainty that a settlement or order made in a separation was the end of the matter as far as money or property issues were concerned and furthermore, because we had legislated for divorce in such a way that parties post- divorce and post settlement or order could still come back looking for further or more relief, the whole system seemed to be tailor made for litigation ad nauseous. Clearly this is not a desirable state of affairs. Gradually, however, as case law is handed down, it becomes obvious that the Higher Courts favour as much certainty in the matter of family law settlements as possible (F and F 1995, DT and CT 2002) and they will only revisit a case in limited circumstances. The case of YG and NG referred to above deals with many of these issues and is instructive. The court had to decide: 1. What weight should be given to a separation agreement which contained a clause saying that the agreement was “in full and final settlement of all matters” on a subsequent application for divorce. 2. What effect, if any, the fact that property was inherited or wealth acquired through inherited property should have on how the courts would look at “proper provision”. 3. What effect the passage of time would have on how the courts might look at an application for divorce made many years after the separation? 4. If one spouse acquires wealth post separation how is the court to regard this on an application for divorce? 5. If there are changed circumstances since the making of the separation order or agreement, what regard is the court to have for these? 6. If a spouse received a settlement in the separation but squandered or spent that money, then what account should be taken of that? These were the questions the court pondered in the case of YG and NG and so the decisions made have great relevance for family law.* While significant weight must be given to a legal separation document, the statutory duty of the court to make proper provision still prevails. In looking at “proper provision” the court must look at changed circumstances. The kind of changed circumstances which the court is willing to take account of are fundamental changes such as illness rendering a person unable to work or in need of medical care/physical care which was not provided for at the time of the original agreement. In the case of F and F 2007 J Abbott ordered a property to be sold in divorce proceedings notwithstanding a full and final clause in a previous settlement, on the basis that the wife had acquired Parkinson’s. If property values had significantly reduced (or presumably increased) since the making of the original order, this would count as a changed circumstance. Exceptional change in the value of assets unforeseen at the time of separation must be taken into account (MD and ND 2011). A changed circumstance might well be the discovery of an asset not disclosed at the time of separation. This arose in the case of SN and PO’D 2009 where the husband submitted that the wife had not fully disclosed details in relation to her companies prior to the settlement as was her obligation under the rules of discovery and that she had subsequently sold her companies for a large sum. The husband was awarded a further €500K for what the Judge called an “information deficit loss” which essentially meant that he found that she had not intentionally withheld the information but that it had nonetheless not been made available to the husband and accordingly, impacted on the settlement. Assets which are inherited will not be treated as assets obtained by both parties in a marriage. This is a very important decision which has a lot of implications going forward. Of course, while inherited assets may not be treated as marital assets as such, they will be factored in by a judge when considering the overall circumstances of parties in order to determine “proper provision”. The length of time since the separation agreement is very relevant. The greater the length of time, barring catastrophe, the less likely the court is to alter the terms of the separation If a spouse acquires wealth post separation and the wealth is unconnected to any joint project which the parties were involved in while married, then the acquisition of this wealth is not a factor for consideration by a court in a subsequent application. Facetiously, this seems to rule out the Lotto once and for all unless the ticket was bought while the parties were married or if they used the same numbers or some such argument. This is a surprisingly frequent question, surprising in that it is extraordinary how many people expect this to happen to them. If the wealth was acquired and even though it has a connection to the marital assets, there is no automatic entitlement to an increase in money. The manner in which the court should deal with changed circumstances and the type of changes envisaged are dealt with in the response to 1 above. A party shall not be compensated for their own incompetence. So if I squander money settled on me post separation whereas my ex- spouse prudently invests and acquires wealth, I will not have an entitlement to come back against his/her wealth except I can make a case that I had no choice but to squander my settlement because he failed to honour his agreement by, for example, not paying me maintenance which had agreed to do or because I got ill or some such. The court found that a separation agreement, freely entered into, is a legally binding document and therefore, weight must be placed on it and most especially if it has a “full and final” clause in the agreement. In determining whether proper provision has been made under a separation agreement or foot of a separation order, the court will look at the standard of living of the parties at the time of separation and not necessarily the disparity in their standard of living as might exist some years later. The duty to make proper provision does not amount to a duty to redistribute wealth. If the circumstances are the same post separation as when the parties separated then prima facie the provision should be considered proper. Of increasing relevance in the current climate, is how the court views bank debts and creditors with the competing interests of spouses and children. The case of YX and XY is useful in this regard. In this case which involved substantial assets but even greater debts the court transferred the family home and an attaching mews to the wife being the only assets of worth as all the husband’s property was in negative equity. The court said….”it was the duty of the Family Court while bearing in mind the Bankruptcy Act 1988 to act with probity and only for the purpose of making such provision as was necessary for the spouses in accordance with the 1989 Judicial Separation and Family Law Reform Act as amended. The proper exercise of this jurisdiction involved not the division of assets between the spouses to the exclusion of the creditors but the provision of necessities such as living accommodation, basic maintenance and in appropriate cases security therefore. This should not be allowed to act in an oppressive manner over the rights of creditors. In the case of O’C v O’C 2009 J Dunne found that the needs of the family as a whole must be considered. The family home was the only property to retain any realistic equity given the precarious nature of the Husband’s financial circumstances and the needs of the wife and the dependent children are most closely met by transferring the entire interest in the family home to the wife. *I think it is only fair to say, in the face of much incredulity from the public now, about this state of affairs is that it has nothing whatsoever to do with lawyers or the judiciary and arises because the public during the divorce referendum debate made it abundantly clear that they would not pass a divorce referendum if there was any possibility that, a woman in particular, would not be able to revert post-divorce seeking further relief should that need arise and this in turn ensured that the legislation was framed in such a way that once off settlements were difficult if not impossible under the terms of the Act but, as is often the case in Ireland, the judiciary as opposed to politicians, have grasped the nettle and have taken decisions based on people’s actual needs and what makes legal sense.

Merry Christmas & Happy New Year

Surrogacy

Human beings have basic emotional needs some of which are to be accepted, respected, valued, needed and useful. All these needs can be called into question if a person or couple finds that they are unable to conceive a child for any reason. Infertility, and the resulting childlessness, can often, though not invariably, lead to profound feelings of inadequacy, emptiness and uselessness. This in turn can seriously impact on a person’s relationship with their life partner. The problem of infertility is as old as time. In our modern age, however, we have reproductive technology. This technology combined with global travel and the increasing commercialization of all areas of life provides us with fertile ground (pardon the pun) for debate.
To many of us, surrogacy can seem like something from Brave New World. However, surrogacy is not new, indeed, it is mentioned in the Bible. Sarah, Abraham’s wife had her servant Hagar carry and deliver her first baby, Esau. What makes surrogacy in modern times seem like something straight out of a science fiction novel is the extraordinary range of reproductive technologies that we have evolved in a relatively very short period of time, since the late 1970s in fact. The commercialisation of surrogacy gives rise to profound legal and ethical implications for all of us. We must now ask the most basic questions such as – Just because science can do it, should it? Another – even if money can buy it, should it? But these only seem like new questions. In fact they are or versions of them are the basic questions arising in practically all moral issues in our modern world. As in all moral questions your answers will determine where you stand.
Many opponents of reproductive technologies argue from the basis of the natural order of things. If you don’t have children, then maybe you were not meant to have them and/or it is against nature to tamper with such Godlike matters as birth and death. However, we tamper with birth and death in all sorts of ways and have done for a very long time. Many of us practice birth control or family planning for example. We also manage pain and suffering due to advances in medical science. We are constantly researching and sometimes successfully discover cures for various previously fatal illnesses and diseases. There will be those who oppose even such practices and such opponents have the merit of consistency. Few of us, however, now feel that we should experience profound physical suffering if it can be prevented by modern medicine. However, the hospices which seem such a byword for compassion and humanity have not always been widely accepted and were controversial in their time. We argue the standpoint of “natural” from the yardstick of our culture, time, location, experience, class background, education, religion, politics and morality. Ancient practices, and not so ancient but different practices, can seem barbaric to us. Plato and Aristotle, founding fathers of much of our western thought processes, educational standards and cultural standpoints ,both saw infanticide from the perspective of their culture as necessary and permitted. Indeed, infanticide was widely practised in ancient societies including Europe as a means of family planning, poverty control or primitive eugenics. We would not consider making the argument of “natural” now in this context but from the perspective of that time, it would have been a viewpoint. “Natural” can be used to justify apartheid as much as it can be used to argue against reproductive technology.
Legal experience has shown that when science gallops ahead and politics and society drags its heels, necessary debates are overtaken by developments and events. This frequently leads to poor law passed in haste in response to emergencies rather than carefully balanced and considered. Reproductive Technology has been forging ahead since the late 1970s and it is time for us to grasp the nettle. We have a tendency to react as if ignoring something will make it go away. We are an island nation but we are no longer isolated. We are part of the international community and developments in one part of that community will affect us here and there is no way of avoiding this. If surrogacy is allowed in other parts of the world and is accessible to Irish people then Irish people will avail of it with the implications that has for the rest of us. In Ireland we took the initiative some time ago and commissioned a report on this matter. This was filed in 2005 entitled “Report of The Commission on Assisted Human Reproduction”. Then, as with so many things, we left it and rested! This report is superb. It is comprehensive, explains much that needs explanation about various reproductive technologies, terms in common use, issues and developments. It names and deals with the legal and ethical issues as they arise and makes recommendations for legislation based on findings. In short it makes a very complex area readily understandable to those without a scientific background and that is quite an achievement. From a global standpoint, if the recommendations of the Commission were to be adopted into Irish legislation, Ireland would stand at the cutting edge. Perhaps not everyone wants this for us but to have no legislation at all, which is our current position, is the worst of all worlds.
Now it is scientifically possible for a baby to be created in a petri dish from the sperm of a man and the egg of a woman and the resulting embryo can be transferred into a second woman to gestate. Reproductive scientists are able to accurately tell if a created embryo might carry a specific disease. The use of embryos, the by-product of such technology, for research is in itself highly controversial. For some time now it has been possible to tell the gender of a child in the womb however, now it is possible to tell the gender prior to implantation in the womb. Soon we may have the technology to determine hair, eye colour etc. All these developments give rise to issues and indeed when combined with politics and culture, can have very unintended results. Such power is breathtaking. It can offer wonderful promise and hope too many people, infertile couples as well as the treatment of many diseases. However, such power comes at a price and not just monetary, the price of responsibility. How do we control and regulate these developments?
Prior to the development of reproductive technology in its current form, it occurred to many people that controlling who can breed was desirable. People believed that they could eradicate poverty, for example by such methods. Their motives were not always bad, many were well motivated. However, these ideas in the hands of, for example, Hitler, led to the mass extermination of “undesirables” and to breeding programs to create an Aryan race. Many fear that the same potential exists with this technology except that now we have a very real possibility of being actually successful. In present day China and India our ability to tell gender is being used to abort female children. Historically, and even in modern day China, it would be an understatement to say that females were and are undervalued. It was commonplace to commit infanticide on unwanted female children. China then introduced the one child policy to curb its population. Put those three things together and it was hardly surprising that the new technology enabling gender recognition would be used to abort female children since if you could only have one child, you would certainly want a boy! Now we have a situation where on a very conservative estimate China will have 30 million more men than women by 2020. There are enormous social implications to this which deserve another article. India is also using reproductive technology to abort female children. Like China such children are not valued. In India, the average birth rate is 927 females to every 1000 males. In some places the number of females is as low as 800. Average out that difference over say 50 years and you have a problem similar to China. Recognition of the problem in China led to relaxation of the one child policy but not its abolition. In addition, the government is now offering incentives to couples to raise girls.
Many people when confronted with the problem of infertility will argue that such couples should adopt. Adoption is also controversial and particularly international adoption. There are those who consider it a form of child exploitation. Regulating adoption, particularly International Adoption, has proved and continues to prove very difficult. Without considering any of these difficulties which are the material of articles in and of themselves, we need only mention that to adopt, a couple has to go through enormous hoops and it is a very long process. Adoption regularly takes 4/5 years to complete. It seems to me too, that adoption should be something you want to do as and for itself, and not something you simply do because you have no other option. Indeed, in my world this would be one of the tests of suitability to adopt but that is another discussion. For single parents, cohabiting couples, homosexual couples (people who are controversial particularly in the area of parenting in and of themselves) can find adoption very difficult if not impossible. Surrogacy often proves a better option for a whole range of people than adoption.
A surrogate is a woman who for financial and/or compassionate reasons agrees to bear a child for another woman who is incapable or less often unwilling to do so herself. The least controversial type of surrogacy is what is often called “altruistic surrogacy” and also referred to as compassionate surrogacy. Many of you may remember that in the TV series “Friends” one of the girls acted as a surrogate for her brother and his wife. Altruistic surrogacy generally occurs where people are related or close friends. Such acts seem noble and therefore, above reproach. This seems to make them morally justifiable. In some parts of the world, like most of the Australian territories with the exception of the Northern Territory, altruistic surrogacy is legal but not commercial surrogacy. When we bring strangers and money into the equation, the issues seem different. But ,of course, if we examine either of these positions in any depth, they do not hold up. The road to hell is paved with good intentions and to do something to help a friend does not make it the right thing to do from a societal point of view though it may be morally justifiable if you look at morality from a purely personal perspective. Should law be concerned with the personal perspective or the societal good? Taking money does not make an act intrinsically immoral or wrong. Compassion and money are not mutually exclusive and many commercial surrogates will still derive enormous satisfaction out of the feeling of having assisted a couple in difficulties. Many surrogate mothers will be and are motivated to offer this service not just for monetary gain. I am conscious too of how the use of certain words can act as a palliative to our sensibilities like “expenses” instead of “fees or payment”. All too often these words are used as a thin veneer for what are in fact commercial payments. In Ireland, for example, because of moral sensibilities around contraception we engaged in the duplicity of donating to family planning clinics rather than buying contraceptives for years. It was simply a ruse to get around the law and nothing more. Whether we called it a donation or not, we were in fact engaged in a commercial transaction, we were buying contraceptives. I think we need to take an honest look at this whole area.
It is fair to say that the waters become even murkier when we consider a comparatively wealthy western educated couple and a socially deprived developing world woman. The inequality of bargaining in such relationships gives us much pause for thought and worry. There is no doubt that the situation is ripe for exploitation, not only it has to be said by desperate Westerners, but also by corrupt forces within those countries themselves particularly countries where women are second class citizens as in India. To commission in India costs about one third of what it costs in the US. In my opinion the answer lies in regulation and International Agreements which won’t completely prevent corruption, they never do, but will go a goodly distance.
The question arises as to whether or not the use of international surrogates is a form of human trafficking? Why confine that question to “International” surrogates ? “International” in this context seems to be a euphemism for “poor”. However, asked in a general way the question has validity and there is no pat way to answer it. Many have answered that the price paid to the Indian surrogacy agency of around €15K of which the woman may receive €8K or so is relatively good compared to the standard of living in India. I have no doubt that this is true but is it an answer? In the recognised agencies in India the women surrogates receive excellent medical care during their pregnancies , ironically enormously better than the care they would receive in a normal standard pregnancy. Does the care given make it ok? I don’t think either of these facts goes to the root of the question. They simply appease but they do not satisfy. Are we saying that if we pay an Indian woman the same money as the US woman that would make it ok? If that is what we are saying then I think it is reasonable to argue that in the market place it is fair to pay what the market dictates. Overheads, standards of living, wages etc are all hugely cheaper in India. What the Indian woman can buy for €8K is equivalent to what the US woman can buy for €50K. On the other hand, if we are saying that the process is wrong and that it is inherently repugnant regardless of what we pay then that holds true for all surrogacy whether compassionate, for expenses only or for commercial reasons whether in India or anywhere else. When we talk about surrogacy as human trafficking I think we are equating it with prostitution. Is it an acceptable argument in relation to prostitution that if it is financed properly and the women are looked after medically and well paid, it is then ok? Many would say yes. There are others who will say that prostitution dehumanizes and alienates and is never justifiable. However, those are characteristic features of many transactions where physical labour is involved. We know prostitution exists regardless of legal bans. We know that outlawing it can often make it more dangerous and even more exploitative for the women on the streets. If we legalise it then where do we draw the line, would we ask prostitutes to pay taxes in other words make it a legitimate job? These are uncomfortable things to think about but we have to think about them. Such research as I am aware of in the UK conducted with surrogate mothers indicates that overwhelmingly surrogate mothers were happy with the experience of surrogacy and few of them experienced any deep or lasting sadness and regret about handing over the baby once the pregnancy concluded. I doubt that the same result would occur if we surveyed women who gave up their babies for adoption for example. There is nothing simple about this. At the end of the day, I think that if a woman wants to offer herself as a surrogate and if she is guaranteed proper medical care in reputable certified agencies, if the manner of how her surrogacy is conducted is exactly and precisely the same as in any Western country allowing this practice i.e., she is not subject to unacceptable health risks and if she is protected under contract and by the law of her country, then it seems to me that she has every right to choose this way of making money for herself and her family. However, such safeguards and guarantees would make surrogacy more expensive in the developing countries and would also only come about if the whole area is properly regulated by law. Surrogacy is now an International phenomenon. We have no law governing this area in Ireland. Developments in reproductive technology and the passing of enabling legislation in other countries, impacts of us whether we like it or not. Desperate Irish couples will commission surrogates abroad just like their counterparts in other countries and take their chances here with the law as it stands. Is this irresponsible, perhaps but it is nonetheless happening. We need to step into the breach and regulate.
The whole topic of reproductive technology could be used as a philosophical starting point for an ethics class. I have only touched on some of the ethical issues, there are many more not least what happens to the spare embryos, the by product of surrogacy? This one gets right down to the whole thorny issue of when life begins. From a legal standpoint in Ireland our controversial Article 40:3:3 which protects the life of the unborn is unclear as we now know as to whether protection applies from fertilization or from some subsequent point in the process. Lack of clarity in this area has implications for the provision of AHR services in Ireland. These and other issues are for another article. There are property rights in question around some of these products, issues of storage, questions as to who should and should not qualify as commissioning parent/s as well as issues of health, class and exploitation. I have only scratched the surface of some of these questions and not looked at others at all. I intend to revisit this whole area. Another fascinating question is the whole question of extremes – how far is too far? Do we allow people to commission designer babies if and when that technology becomes available which it will and if not, how do we stop them? Cloning? Dolly the sheep was one thing, but human beings? Finally, for now, to what extent are our imperfections as human being, our little design flaws or not so little design flaws, part of a necessary humanizing process for both ourselves and others? All this and I have not touched on the law yet but I will – later!

Apply – Don’t Fly. An Examination of the Hague Convention on the Civil Aspects of International Child Abduction.

The Hague Convention on the Civil Aspects of International Child Abduction is an international human rights treaty to which 86 countries have now signed up. The Convention is a legal mechanism to recover children abducted to another country. It is designed to bring uniformity to the manner in which the courts of the signatory countries deal with child abduction and to dissuade people from “forum shopping” when it comes to matters of custody and access. While the object is uniformity between countries in their response to kidnapping, in reality compliance between the signatory countries is not always what it should be. Therefore, while The Hague Convention offers much needed protection, prevention is still the best measure when dealing with kidnapping.

Parental kidnapping is the most common form of kidnapping and it occurs when a child is wrongfully removed, i.e. without the permission express or implied, from the person lawfully exercising custodial rights at that time. The Hague Convention covers those situations in which the child is taken from his place of residence (known as his “habitual residence”) to another country. Habitual residence does not have any legal definition as such but it generally means where the child has been resident for most of his or her life prior to the kidnapping. Obviously with older children this is easier to establish whereas with very young children who have been moving around for one reason or another, it can be a much more difficult exercise. However, whether children are older or younger, it can often be quite a difficult exercise since quite often parents from one country will live in another for economic reasons only. They may have an agreement or claim that there was an agreement to return to the country of origin as soon as practical. This sort of thing can lead to a dispute as to where parties were in fact resident as in such situations it is common for one party generally the mother to be spending periods of time in her home country while the husband is away working and joining her husband occasionally. Also an agreement or alleged agreement to return to a home country can lead to a presumption of consent when it comes to taking the child from one location to another.

Speed is of the essence in responding to a parental kidnapping. The signatory countries are charged to deal with these cases expeditiously ie they must process the case quickly through their system and give it priority listing. If the left behind parent (LBP) does not take action quickly a court may view this as acquiescence or consent to a relocation of a child or children rather than a kidnapping per se. Time is also crucial in that if a good deal of time passes (generally anything longer than 12 months) a court may feel that the child has now established a new habitual residence and may not order the child returned to his or her former habitual residence. The court has a discretion in this regard. It is important to note that the court does not look at any behavioural issues surrounding the case except that those issues impact on how they must decide the case under the domestic legislation bringing the Treaty into force. Since the case is about children, the court will only look at abusive or bad behaviour in so far as it affects the welfare of the children. Therefore, even though a parent wrongfully removed a child to another jurisdiction, it is possible under the Hague Convention for that taking parent (TP) to succeed even under the Convention if too much time passed before the matter was pursued through the courts. The passage of time can be construed as acquiescence i.e the LBP was seen to have consented to the removal. This can be a shady area as sometimes a parent will have given permission for a visit but not to a permanent stay and sometimes a parent will give permission to a permanent stay and will then change their mind or the permission or otherwise is sufficiently vague for no one to be sure either way. In addition to consent impled or express or to acquiesance occasionally, the TP is able to establish that the children will be abused or harmed if they are returned to their habitual place of residence or a child who is old enough to be heard by the courts expresses a strong view that they do not wish to return to their former residence. Accordingly, while the Hague Convention is a wonderful and much needed Treaty, it does not in an of itself guarantee return since the compliance of some of the signatory countries can vary widely from location to location and it is not a catch all, in that there are defences allowed and while these are limited, it is as well to be aware that they are there.

Looking at the compliance records of various countries under the Hague Convention as far this is documented, it is as well to remember that the resources of many of the countries, who do not comply in the way that one would hope, are often severely limited. Lack of resources can result in overcrowded courts systems, under-resourced offices and administration resulting in delays which in themselves will essentially defeat the Convention. However, while under-resourcing can be a problem, there are many countries who have resources whose compliance records are not all they should be.

The US examines compliance each year and publishes its findings in glossy reports under the auspices of the Department of State, however, it does not examine its own compliance and one has to ask why not? Is there an assumption that the US is somehow above that and that they are 100% compliant and if so, those are dangerous assumptions as there are many reasons to suspect that compliance in the US is not all it should be. Because of its economic clout, it is crucial to the success of the Hague Convention that the US becomes exemplary in its compliance. The US is in a prime position to bring economic pressure on other non compliant countries or indeed to influence non signatory countries to sign up.

With the advent of increased immigration, increased travel and globalization, taking a child or children to live in another country is now far more likely than it would have been thirty years ago. Marriage and partnerships with persons from other countries are quite common and such relationships when they break down can give rise both to the reality of parental kidnap or just to the ever present fear of kidnapping. In addition, parents who feel short changed in this country by our legal system can be seduced into thinking that they should flee or take their chances in another country before another court. Sometimes people leave because they are angry, sometimes because they are fearful or panicked and sometimes just to get even. Many others are simply, unbearably lonely in a country which is, to them, foreign, when their marriage comes to an end and they yearn for their own personal families and culture. Most parental kidnappings or threats of parental kidnapping are driven by emotions. Those emotions can range from fear, desperation and loneliness to vengeance. There are occasions, but research would indicate that they are rare, when a parental kidnapping is reasoned by the parent leaving to be the only way out because they have genuine experience that the other parent is an abuser and will harm them or the children if they stay. The Convention allows for such exceptions but the standard of proof is quite high. No matter what the motive, however, whether it is fear driven or calculated, threats of and parental kidnapping causes serious harm to relationships, to trust and can cause lasting damage to the children involved and therefore, kidnapping must be viewed as a very serious matter. Panicked and upset parents do not make for good parents and where the kidnapping is conducted by an abusive parent , a parent who has had little involvement with his/her children before the kidnapping and certainly not at such an intense level, there is grave cause for concern.

Most of us have a very difficult time imagining why a parent would kidnap a child, which can only cause harm to the child, and still claim to be guided by love for that child. Frequently, parents who commit this crime will justify what they have done by denigrating the parenting skills of the other parent or will claim that their relationship with the child or children is closer than that of the other parent. Desperate people resort to desperate measures. Most people who kidnap are genuinely convinced that this is the best thing to do at the time that they do it. Even allowing for that, it is rarely a considered action in any kind of rational way and because of that it is important to leave the door open for discussions enabling a voluntary return of the children. For parents who succeed in kidnapping their children, even for a short time, I would imagine that it is only a matter of time before they realise the sheer insanity of what they have just done. Frequently such parents return the children to the LBP after a short period of time. That is why leaving the door open for some dialogue is always the right thing to do but that door cannot stay open so long that it will then defeat the necessity for speed in dealing with this matter as emphasised above.

When parental kidnapping does happen it causes enormous suffering to the parent left behind and it causes a great deal of harm to the children as well. Frequently authorities can make the assumption that because the children are with one of their parents, albeit a wrongdoing parent, the children will be ok. That is not the case. Children who are kidnapped frequently lose their identity in order to protect them from detection as well as losing their home, extended family not to mention the other parent which causes the greatest damage of all. Without good cause, it is very hard to justify such an action in the cold light of day.

Notwithstanding the shortcomings of The Hague Convention in its operation for those parents whose children have been kidnapped to a non-signatory country, the situation is nothing short of a nightmare. They are reliant on treaties being in existence between their home country and that country and that will vary widely from country to county. As I mentioned, eighty six countries has signed up to the Hague Convention to date. Some of these countries have a sizeable Muslim population and in the case of Turkey and one or two others, are primarily Muslim. However, it still remains the case that effectively the Islamic world and Asia are not signatories and are unlikely to become signatories . Probably some of the most heavily published parental kidnappings have occurred between parents, one of whom lives in the West and the other in one of the Islamic countries. Islam’s code of private family law known as Sharia specifies that all children born of a Muslim parent must be raised as Muslim regardless of whether or not the other parent is Muslim. For Muslims there is little or no distinction between religion and law. A parent failing to raise his or her children as Muslim children would be failing as a Muslim. As far as a Muslim country goes it is always in the best interests of a child to be raised as a Muslim and as long as that thinking is fundamental to thinking in that part of the world then it is very difficult to see how the Hague Convention would ever find acceptance since it goes completely against the tenor of the law and identity. Added to that are the very different legal standing afforded to men and women in Islamic cultures and their very different legal and cultural approaches to the care and custody of children. Married women in most Islamic countries will have to ask permission from their husbands to leave the country if they wish and sometimes even to travel within the country. Children over a certain age are totally within the control of their Father or their male relatives. The age when this happens varies from place to place and there is a difference between the age this happens to girls and to boys. Usually girls are left with their mother’s a little longer. All of the above will impact severely on any custody or visitation that can be exercised within the Islamic country assuming one even got that opportunity. If a woman remains married to the Muslim man her standing is very limited by Western standards and brings risks to her in re-entering that country if she has left but if she is divorced she probably has no standing at all. It is worth mentioning that a woman who has divorced and remarried whether Muslim or not, will loose all rights to her children. Dual citizenship is not recognised in Islamic countries. Accordingly, when children are wrongfully removed from a parent in the West and brought to an Islamic country, they will almost certainly not be sent back by the authorities in the Islamic country to the West. Quite often in this situation the best that can be achieved are visitation rights in the Islamic country but even if the law permits these, a Father can still decide under the code, regardless of the court order, that he will not allow such visits to take place. Many women have found themselves unable to get their children back from such countries. Sometimes, such women have had to resort to extremely desperate measures even involving the use of retired marines to assist in kidnapping the child or children back. The re-abducter, and all those involved, is then guilty of a criminal offence and if caught will face the full sanctions of the law notwithstanding that the original perpetrator got away free. It is hard to imagine the effect on the children of this sort of thing. In a post 9/11 world it is very easy to characterise this as a West v Islam problem. However such characterization will not serve us well as the tendency for the West to demonise Islam is one which vested interests in the Islamic world, not friendly to the West, tend to welcome. At the end of the day economics, education and cultural ties are more likely to resolve these difficulties than any other and that is where we should be looking. It is however, worth noting that while there is much lip service paid to Children’s Rights and indeed to Human Rights, they rarely get in the way of trade and indeed other politically vested interests and that is true of the West as much as of Islam. Accordingly, pressure needs to be applied in our backyards rather than pointing the finger overseas.

Apart from the Islamic world however, there are a number of black holes when it comes to parental kidnapping that are worth noting. Japan has an atrocious record in this area and is very much a safe haven for abductors. Given trade with Japan and the number of Japanese companies overseas, it should be possible with the right pressure to get Japan to sign the Hague Convention. That would be a big step forward but ensuring compliance is the other key step. Otherwise parents will find themselves in the same position as those children abducted to Mexico ie all the legal paperwork and processes in place but no substantive relief to be had, only an expensive road to nowhere. Mexico, while a signatory to the Convention, has a very poor record as does Brazil, Bulgaria, Bermuda, Honduras, Bahamas and St Kitts. However, this is all from the point of view of the US and the experience of European countries one with the other is not documented. There are strong feelings, however, that national interests are too often a priority and cooperation between certain countries virtually non existent as appears to be the case between Germany and Poland for example. It would seem obvious to me that in the case of many of those countries mentioned by the US in its most up to date report, under funding is probably at the heart of most of the problems but there may be other national factors also. There are other countries giving cause for concern but the main difficulties identified in most of the countries with a poor track record who are signatories are delays at all stages being the Central Authority stage, the judicial stage and the law enforcement stage.

Many countries do not recognize international abduction and retention of children as a criminal offense. The recognition of this would allow for extradition treaties in some cases. It is worth noting in passing that while it is a crime to abduct a child from the US, it is not a crime to abduct a child into the US and that would be mirrored widely on the international stage. In addition, making it feasible in all countries signing, for parents whose children have been abducted to process their claim with the assistance of free legal aid in any of the signatory countries, would ensure considerably less hardship for LBPs to take action and would test the mettle of the signatory countries as to how seriously they really take this issue. All the signatory countries need to do compliance reports each year for a true picture to be gained of the extent of the problem and how it is being experience and dealt with on the ground.

In Ireland more children are abducted into Ireland then removed and this in and of itself gives cause for concern. If Ireland is an attractive place for children to be abducted into, that suggests we are abduction friendly to some extent and we need to examine that. In Ireland, legal services for those whose children have been abducted are arranged through the Irish Central Authority with the Legal Aid Board Solicitors exclusively. That means that LBPs whose children have been abducted into Ireland do not have to face horrendous legal bills at any rate. There are undoubtedly substantial other expenses involved such are air travel, accommodation and so forth. TPs can apply for legal aid in Ireland but must qualify under the means test for same and if they do not, will have to be privately represented. The role of private solicitors in abduction cases tends to be limited to those parents who decide they wish to be privately represented or a parent who removed the child and is not eligible for legal aid or a non-Irish lawyer seeks legal opinion in relation to Irish Law. For example, a removal or retention is wrongful under Article 3 if it is in breach of custody rights that were actually exercised or would have been but for the removal or retention. “Rights of custody” are defined according to the law of the country in which the child was habitually resident immediately before the removal or retention. In addition, applications under Article 21 of the Convention which relate to access rights are not legally aided. A parent whose child has been abducted to Ireland or a parent whose child has been abducted from Ireland should immediately contact the Dept of Justice Equality and Law Reform at Bishop Square, Redmond Hill, Dublin 2 and pursue the matter from there.

It is worth remembering that while international abduction is a very serious problem and is on the increase, the number of overall kidnappings is still quite small. There are a number of indicators that would allow a person to estimate the risk in each situation. These indicators have been compiled by profiling over a number of years based on various case studies. As I have said prevention is probably the best strategy to adopt. I intend to write another article on these two points very soon.

She, He or It

In 1997, Dr Lydia Foy an Irish dentist, at that time unemployed, registered as male on her birth certificate, applied to the courts in Ireland represented by FLAC (Free Legal Aid Centres) for the right to alter her birth certificate to reflect her gender of choice. She had been married with two children. She had separated in 1991 and in 1992 she underwent gender reassignment surgery in England, such surgery not being available in Ireland. My understanding is that this surgery is still not available in Ireland but interestingly the Eastern Health Board (as it was at the time) contributed money to the surgery. At the time of her application, Dr Foy had changed her name legally and her passport, driving license, medical and polling card all reflected her new name but not her birth certificate. After her marital separation Lydia was granted conditional access to her children at first, however, in 1994 the Irish Circuit Court prohibited all access. I have no idea why the Circuit Court arrived at that decision but I can make an educated guess. One can only imagine the suffering, confusion and embarrassment all this must have caused on every side of the equation. Recently, I listened to a transgendered woman being interviewed on the radio as I drove into work and she said that she was pleased that her ex wife at the time that she was undergoing gender reassignment surgery kept their daughter away from her because it meant that her daughter did not have to deal with all that stuff at that period and equally, she did not have to cope with her daughter’s confusion and possible pain when she had so much on her plate at that time. Much later she made contact with her daughter through a happy accident and discovered a wonderfully broad minded girl with whom she now has a great connection. I do not know how things worked out for Lydia Foy in that regard but I can hope. I know that at the time of her application to the court, the barrister representing her wife and children who contested the application when it came on for hearing in 2000, was a chum of mine, and from what I heard the children were very angry and confused about the whole business. After reserving judgement for nearly 2 years which must have greatly added to the suffering, the High Court eventually handed down a decision rejecting Dr Foy’s challenge. Then by a twist of fate, 2 days after the decision, The European Court of Human Rights (ECHR) handed down a decision in the matter of Christine Goodwin v UK, who was a British transsexual, that her rights were violated under articles 8 and 12 of the Convention. In 1970 in the High Court in London after 7 years of marriage, Arthur Corbett, a member of the British aristocracy, filed to have his marriage to April Ashley declared invalid on the grounds of Ashley’s sex. She was a male to female transsexual, a society hostess and a model for Vogue. Corbett was well aware of Ashley’s background and had been at the time of the marriage. She had been “outed” as a transsexual by either, The News of the World or the Sunday People (the morals of those particular rags are consistent at any rate) depending on which report you read, in 1961. The Judge ruled that the key criteria for deciding sex were chromosomes and internal or external sex organs. He ignored psychological factors or the effects of gender reassignment surgery and stated the essential role of the female in marriage was to have children. He went on to declare the marriage void. This decision guided Britain until 2004 when after the Christine Goodwin case in the European Court, the Gender Recognition Act 2004 in the UK was passed. Ironically, April Ashley applied in 2005 and was finally given a Birth Certificate showing her female name and gender. The Goodwin decision opened the door for the Foy case to be reviewed by the Irish courts. In 2005 it was back before the High Court who ruled in favour of Dr Foy finding that the Irish State was in breach of its obligations under the European Convention on Human Rights in its failure to provide recognition of the acquired gender of transgendered persons. Initially the State appealed the decision but subsequently withdrew the appeal and the way was then open for the State to deal with this matter in a proper manner. For Lydia Foy this had been a 13 year battle through the courts but an ongoing battle in that legislation has yet to be enacted and while progress has been made there is still a way to go.
After the High Court ruling in Dr Foy’s favour and the withdrawal of the appeal, the Government appointed a committee entitled the Gender Recognition Advisory Group (GRAG) in 2010 to enquire into, advice and report to them on this matter so that they could draft appropriate legislation. The makeup of GRAG was the subject of some criticism at the time and continues to be, in that no member of the transgender community was, officially at any rate, on the committee and the committee was made up of civil servants. The terms of reference of the committee were also somewhat limited in that it did not allow for any investigation into the situation of intersex persons. In any event, GRAG has recently filed its report.
The report proposes establishing a scheme to enable a person whose birth is registered in Ireland, who is 18, who has a clear and settled intention to live in a preferred gender permanently and has so lived for at least two years, to apply to have their birth certificate altered to reflect their acquired gender. This individual will also need to supply evidence of a diagnosis of gender identification disorder or evidence of having undergone gender reassignment surgery or evidence of legal recognition of their preferred gender identification by another jurisdiction. Furthermore, persons with an existing valid marriage or civil partnership are excluded from the scheme. Interestingly, this report is coming under much criticism from the Transgender Community and most particularly the Transgender Equality Network of Ireland (TENI) who were unrepresented on GRAG. Their criticisms are levelled most strongly at the provision that married persons and/or registered civil partners must divorce or dissolve their union before applying. Those who defend the recommendations argue that not to have this restriction would raise clear constitutional issues and equally those who criticise this recommendation argue that it raises clear constitutional questions. Clearly, we are headed for a constitutional challenge whichever way the legislation is drafted. Those arguing against the recommendation say that too effectively mandate that a couple divorce, prior to granting recognition, is a direct interference with the special constitutional position of the family based on marriage. Those arguing in favour of the recommendation say that if there wasn’t a restriction against married couples applying, the legislation would have the potential effect of introducing same sex marriage and would be open to a constitutional challenge. Of the two positions, both of which undoubtedly give rise to legal complications, I would take my chances on those arguing against the recommendation mainly because I see nothing wrong with same sex marriage and would rather open the debate that way. So why are civil partnerships required to dissolve? The justification offered was that the effect of no restriction would be to allow opposite sex civil partners to come into being in circumstances where the civil partnership relationship does not benefit from the full protection afforded to marriage! To put it mildly, I am perplexed by this one! If we have a problem with civil partnerships that do not have the full legal protection afforded to marriage then don’t make a distinction and simply allow same sex marriage. They also in fairness go on to say that if marriages only were mandated by the proposed legislation and civil partnerships were not, there would be constitutional challenge. Essentially, if we are going to be unfair to one lot then we have to be unfair to the other lot as well – equality of unfairness!! Yet GRAG states that it should be a guiding principle of the Scheme that the terms and conditions of the scheme to be set up would not deter potential applicants. Certainly this is a worthy sentiment but for those transgendered persons who are in civil partnerships or married, the proposed restriction is a potentially very strong deterrent. How is a person supposed to choose between their identity and their family? There are many couples who have married or entered into civil partnerships fully aware of transgender issues for one of the partners and who will not wish to separate or divorce. In addition, TENI criticises the requirement for a medical diagnosis or gender reassignment surgery in order to qualify to apply. This seems to be a choice between mental health treatment or surgery? Do we have the experts here to make this type of diagnosis? Many countries in Europe have had legislation on these matters since the late 70s and early 80s and now genuinely have the benefit of hindsight. Many of them are moving away from the requirements to have undergone surgery or some other form of medical intervention prior to recognition. It is worth noting that EU member states that have most recently updated their legislation have dispensed with these requirements. It would be good if Ireland would not only legislate on this long overdue matter but would also learn from the experience of others who have been here before us but it seems a tad unlikely.
Intersex persons are excluded from the recommendations in GRAG as the terms of reference of the committee did not allow for them to investigate in this area. Intersex is a term applying to a person born between sexes having partially or fully developed pairs of female and male sex organs. Intersex is not a sexual preference or an option. It is a physical or gender issue. However, most intersexed people do not consider themselves to be both sexes and tend to identify with one or other for various and complicated reasons. The issues surrounding intersex, not least the issue of sexual assignment surgery in infancy, the variations possible in chromosomes and how these variations should be regarded, are hotly debated and very controversial. They are worthy in and of themselves to separate consideration. It is vital that we try and include intersex persons in any proposed legislation. At present, intersex applicants are excluded from applying the UK as the definition of gender identification disorder specifically excludes them. To their credit, GRAG has flagged this issue and has recommended the need for proper consideration, research and medical expertise into the area of intersex.
(The use of gender specific language to write about intersex persons and transgender is often challenging and if I have unintentionally offended, I apologise.)

Billy Connolly

“I Do……provided always ….on certain terms and conditions…” Prenuptial Agreements

To prenup or not to prenup, that is the question! Most people think that a prenuptial agreement is far too cutting edge for the “likes of them” however, I saw as I researched this topic that no less a radical body than the Irish Farmers Association were calling for legal backing for prenuptial agreements. I suspect that many people feel guilt, if they even think about getting a prenup. Recently, one of my acquaintances sidled up to me and mentioned it in hushed tones “I need to talk with you about a prenup”. I told her to come and see me and then for weeks after that she would say when she met me “ I haven’t forgotten” as if it had been all my idea in the first place and I would warn that she needed to consult with me about this in good time and still no show. I began to feel like the spectre at the feast whenever I met her. In the end, she didn’t come and see me, but not for good or sufficient reasons, I suspect, more because she simply did not like the look or feel of herself as someone who had even thought about prenup before the big day. This woman had her own business which she had built up herself and so a prenup was something to which she should have given active consideration. But beyond hushed, hurried exchanges, this hard nosed business woman could not even bring herself to sit down with me and give the matter rational consideration. Why is this?

In historical terms, marriage had to do with family ties and consolidation of wealth. The contract element of marriage was to the fore. These elements are still there with more or less emphasis in different parts of the world. However, now, in the West we tend to forget that marriage is first and foremost a contract and one which is ring-fenced with laws as old as time and we focus on love. For many centuries husbands owned their wives as property as they did their children. A married woman could not possess property in her own right until comparatively recently in legal terms so that whatever she had was her husbands. Of course, she also did not have the vote or the right to divorce and so she was rightly ….”packaged” as they say. These laws have, of course, been updated, not without some bloodshed, but marriage is still a contract. Some of us only seem to reflect on the property aspects of marriage when we are separating or getting a divorce and only then with a huge tinge of bitterness. 50% of all first marriages in the US end in divorce and the number rises significantly for 2nd and 3rd marriages. Even though our marriage breakdown rate is relatively low by comparison to the US or even that of our nearest neighbour, we would not want to get smug. We have the leisure in Ireland of the “benefit of hindsight”. Because we were so late in coming to divorce, we can learn from the mistakes of practically everyone else in the Western hemisphere. We should not miss the opportunity.

At present, our legal position is that prenuptial agreements are not illegal nor do they have legal backing. The possibility of such agreements is envisaged in our family law legislation with the proviso that the court can vary them if it wishes and has a wide discretion. Should we leave well enough alone? There are very good arguments in favour of prenuptial agreements or pre-marriage contracts and I believe that we should take a fresh look at them and allow them to have legal backing on certain well defined terms and conditions.

We all agree that couples should be as honest as possible with each other before they marry. We all agree that couples need to discuss the hard questions with each other before they marry and share a common set of life goals, for example, how important are careers and money to us, do we want children, how would we like to raise them, will we both work once we have a family, how will we share finances, how will we interact with each other’s relations, family and friends, how important is time apart for each of us and so forth. There are many very important things that couples need to discuss from the standpoint of their educational and cultural backgrounds. We encourage couples to do pre-marriage courses precisely because we know how important it is that these questions get discussed and resolved or not, as the case may be, before the marriage. Yet in very many cases, they do not get discussed as is obvious to me in my job and worse than that, many people think it is unromantic to discuss things like money and property before a marriage. Yet we know that people have money personalities. Some like to spend, some like to gamble, some like to save, some exercise judicial spending and some like to budget and so on and on. Can any of us put our hands on our hearts and say that couples do not fight over money? Can any of us say that many couples do not profoundly disagree on how money is to be spent in their marriage and can any of us say that many a marriage has floundered when money shortages occurred? So we know that money is important and that for a marriage to work people need to have an understanding about money. A prenuptial agreement can help a couple begin their marriage preparation with an honest disclosure of their respective financial positions making each fully aware of each other’s circumstances. Such discussions will also lead to a crucial understanding of their respective attitudes to money.

Who should consider a prenuptial agreement? Those who are going into a second marriage should certainly consider a prenup since quite often they are bringing property into the marriage that was acquired previously or there are children from a previous marriage. People who are marrying for the first time but have children from a previous relationship, people who are marrying for the first time but one or both of whom has property or business interests and people of inherited wealth or property or those likely to inherit significant wealth. In the case of the aforementioned farmers many of them would have inherited family farms which had passed down through their families for generations only to see them being broken up as a result of a separation or divorce. As a result many farmers are not passing on the farms to their young sons for fear that the son’s marriage may not stand the test of time. This is not in anyone’s interests since we need fresh thinking in all areas of life. A prenuptial agreement is a contract signed by a couple before the wedding detailing what their property rights and expectations are upon divorce or death. Since marriage is a contract in and of itself there is nothing inherently anti- romantic in entering into a premarriage contract and since we all agree that discussions about money and property are a necessary part of foreplay so to speak, then what can be wrong with detailing those items and out expectations. As we tend to marry later in life than previous generations more of us have businesses and property entering into the marriage, and as our divorce jurisdiction gets older more of us are marrying for 2nd and 3rd times, so basically quite a few of us need to give the idea of a prenup serious consideration.

Recently, Prince William decided against a prenuptial agreement before his marriage to Kate Middleton. How much consideration he gave to it, I don’t know but a lot of headlines praised him for putting romance and love first which is quite simply wrong headed in my view. When Crown Princess Victoria of Sweden married Dan Westling, a fitness instructor, agreements were drawn up to define how wealth should be divided should they separate. Lawyers acting for the Princess ensured that all property, inheritance and gifts belonging to the royal household remained in her name. And does anyone really think it should be otherwise? I doubt it. Still we tend to associate prenups with the rich and famous and I suppose the examples I am using here are not helping but those are the prenups we hear about in the papers. Prenuptial Agreements have been popular in Hollywood for many years and in the US somewhat less so but they have not tended to be part of British law and still less of Irish law. That changed last October when Katrin Redmacher, a German heiress, succeeded in changing the face of marriage law in England when her prenuptial agreement protecting her inheritance was upheld by the court. And what is in England today tends to be in Ireland tomorrow. In the EU, Ireland and Britain are the only countries without legislation on prenuptial agreements. In Ireland, we have, in fact, already moved towards private ordering in Irish family law by the introduction of co-habitation agreements. Such private agreements will be enforceable subject to certain formalities and as things currently stand there are no comparable provisions for married couples. However, it must be obvious that it is only a matter of time.

There is no doubt that prenups have an uneasy place in society. Robert Brown, a British Airways pilot killed his wealthy wife because he thought he had been stitched up in the prenup. He quite literally hit her over the head with a mallet. So what needs to happen to ensure that brides who want a prenup are not courting death at a later stage and that the agreement will be enforced? Well in Ireland we should enact legislation for starters and such legislation should provide that couples should each have their own lawyer and there should be a full disclosure of assets on both sides. In addition, both parties need to have plenty of time to consider the terms before signing. If an agreement is signed too proximate to the wedding it could lend itself to a claim of coercion later.

Prenuptial agreements can be extremely detailed. We tend to think of them only in terms of property coming into the marriage which was acquired before the marriage but they can also make provision for money being set aside for college education in respect of either of the spouses or children and this might prove very important if, for example, one spouse had helped financially to put the other through college in the early days of the marriage. An agreement could also make provision to set up trusts for minor children.

The Irish Farmers Association has outlined a draft prenup which seeks to protect the family farm and prevent it being broken up into unviable smaller holdings. I think our Government has a vested interest in this as well both historically and in modern economic terms. They suggest that any new assets acquired during the marriage or improvements and/or additions to the farm would be divided. This is grand in theory but as a family lawyer, I can assure you that many a great battle was fought over whether something was or was not an improvement. Anyway, something has to be left to the lawyers, you can’t have people agreeing everything themselves, where would we be?