Dividing the spoils on divorce: rule-based regulation versus discretionary-based decision
Notwithstanding the significant variations in processes adopted in the context of asset distribution on divorce, most jurisdictions incorporate some mix of rules and discretion in their regulatory structure. In presenting a critical analysis of various regulatory approaches to asset distribution on marital breakdown, this article demonstrates the diverse structures currently underpinning the governance of inter-spousal property disputes on divorce. Although it is difficult to ascertain definitively whether an optimum approach exists, the varying configurations of legal regulation serve to demonstrate the workability of more than one approach to the rules-versus-discretion dichotomy. While individual jurisdictions can be placed variously at different parts of the regulatory spectrum, this article assesses the positioning of four distinct jurisdictions; namely, California, Scotland, Ireland and New Zealand; with a view to identifying and assessing the choice and effect of alternative approaches to legal regulation. More broadly, three key benchmarks are utilised; democracy, fairness and predictability, as the backdrop for the analysis and critique of the regulatory approaches identified. In considering the issues, both in the abstract and in the context of the regulatory approaches in the identified jurisdictions, an insight is provided into the most workable structures for the regulation of asset distribution on marital breakdown.
By Dr Louise Crowley, Lecturer in Family Law, University College Cork
This article appeared appears in the November 2012 issue of International Family Law.
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