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Financial provision and property allocation on divorce: A critical comparative analysis of the Irish decision-making policy and process

Crowley, Louise 2010. Financial provision and property allocation on divorce: A critical comparative analysis of the Irish decision-making policy and process. PhD Thesis, Cardiff University.

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Abstract

The aim of this thesis is to assess the Irish regulatory approach to asset and wealth distribution upon marital breakdown, and to highlight the implications arising from the failure to articulate the social policy aims of such regulation. Whilst the main body of the thesis considers the regulatory approach of four distinct jurisdictions, it commences with a critical overview of the rules versus discretion debate in order to illustrate the nature and impact of different approaches to law-making. Thus chapter one incorporates both a theoretical examination of rule-based and discretion-based regulation and an examination of the significance of such regulatory approaches in the context of asset distribution on divorce. Chapter two provides a historical account of the elevated status of the marital family under Irish law and the implications for the manner in which the remedy of divorce was eventually enacted. Chapter three provides a critical analysis of the content and workings of the Family Law (Divorce) Act 1996, which in granting extensive and infinite judicial powers to secure justice and proper provision, has evaded the responsibility for identifying the objectives of such state intervention, creating a legal and social policy vacuum and a system which lacks legitimacy, predictability and fairness. In order to fully illuminate these shortcomings and ultimately inform the Irish lawmakers as to the need for, and nature of reform, a detailed and comparative analysis of the governing regimes of three distinct jurisdictions, California, Scotland and New Zealand is presented in chapters four to six respectively. Particular attention will be focused upon the willingness of these law-makers to enunciate the social and legal policy objectives of their governing laws. Ultimately it will be argued that effective governance demands that regulatory processes, howsoever structured, exist within a considered and articulated legal and social policy context.

Item Type: Thesis (PhD)
Status: Unpublished
Schools: Law
Subjects: K Law > K Law (General)
ISBN: 9781303218262
Date of First Compliant Deposit: 30 March 2016
Last Modified: 19 Mar 2016 23:31
URI: http://orca-mwe.cf.ac.uk/id/eprint/54987

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