Marriage Breakdown- Proper Provision- How final is final?

What statistics do we have on the rate of separation and divorce in Ireland?

Between 2006 and 2011 the number of married people in Ireland increased by nearly 10%, while the number of divorced people increased by more than 150% between 2002 – 2012, reflecting both a higher incidence of marriage breakdown and a greater number of couples availing of divorce following separation.

Anecdotally , since 2011 the percentage has dropped.

If a marriage breaks up – what are the options available?

• Nullity

• Deed of Separation or Judicial Separation

• DivorceNullity is an option where the Court would make a finding that a marriage never existed. This is an extreme option which could leave the parties without any financial redress.
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The grounds which will render a marriage void are:

1. an existing valid marriage,
2. where either party was under 18 and had not received a judicial exemption,
3. failure to observe formalities (such as the required three months’ notice),
4. absence of consent (including duress, undue influence, fraud and mental illness),
5. where parties are within the forbidden degrees of blood relationship

 

Deed of Separation

Many family disputes arising from marital breakdown may be settled amicably between the spouses.

 

A Deed of Separation is a document that may be drawn up and executed by the parties to a marriage, where that marriage has broken down and where the parties do not wish to have recourse to the Courts for the purpose of agreeing the terms of the breakdown. A fundamental provision of every separation agreement is an agreement that the parties will live apart.

Usually a Deed of Separation will make provision for custody, access to children, maintenance, division of matrimonial property and Succession Act rights.

The terms will be committed to writing and signed by both parties. The Deed will also attempt to deal with matters that may cause confusion in the future, such as the education of dependent children or the entitlement to apply for passports for dependent children.  However, one such provision that a Deed may not make reference to, without first getting Court approval, is that of an alteration of existing pension.

Judicial Separation

Following marital breakdown and a period of separation, a spouse may, under the 1989 Judicial Separation and Family Law Reform Act, as amended by the Family Law Act 1995, apply for a Judicial Separation.

The effect of obtaining a Judicial Separation is that both spouses are relieved of the obligation to cohabit with one another.

Divorce

Divorce is a fairly recent development in Ireland and the ban was lifted following a very controversial referendum in November 1995 and since 1997 people can apply for a Divorce in Ireland.

In 2002, the first census since the legalisation of divorce in Ireland in 1995 showed there were 35,059 recorded divorces and in mid-2011 87,770 couples or 2.4% of the population were divorced.

What is the effect of a divorce?
The main effect as far as most parties are concerned is that they can remarry.

Does Separation or Divorce Really mean the end?
While the formalising of Separation will recognise that a couple are no longer living with one another as husband and wife and a divorce will legally end a marriage there are some limited cases where any division of assets that has taken place in doing so can be re-visited and varied.

The Yardstick

In dealing with the breakdown of a marriage the courts will look to make what is deemed to be “proper provision” for the parties involved. This includes looking at:

1. Income, earning capacity and other financial resources;
2. Financial needs and obligations;
3. Age, duration of the marriage and length of time living together;
4. Standard of living;
5. Any relevant special needs;
6. Contributions made to the welfare of the family;
7. Accommodation needs;

of both parties, amongst other factors, and arriving at  the asset or financial split based on this criteria.  There overarching aim is fairness and justice.

 

Is Clean Break a reality?

There is no provision for a “clean break” in Irish family law legislation.  However, the Courts have accepted that there is a principle of law that supports any effort made by the Courts or parties to arrive at finality or closure, wherever possible.  This is particularly true in a breakup where there are ample resources to cater for both parties (and their dependents) needs.

Can the parties agree on what each will get?

The Courts have expressed support for the notion that couples can make agreement between themselves as to how they wish to order their affairs.  Any such agreement should be given significant weight should either of the parties later wish to re-visit the matter. This is particularly important if the couple at the time of coming to the agreement had specified that it should be final.

The courts then, should only get involved to alter the situation after this, if such an agreement does not “properly provide” for one party or if the circumstances of one or other of those involved have changed dramatically since this was entered into.

In a similar vein, the courts have indicated that any windfall or wealth which one party gets after the couple’s relationship has formally ended or, very importantly, assets which were inherited by one party should not automatically be open to a claim by the other unless they were involved directly in obtaining same. Any such assets however, may be considered relevant to the “proper provision” criteria.

 

Change in Circumstances

What then, if an agreement or court order is made and one or other of the parties finds themselves in a situation where their financial position after the  matter has been finalised changes so that the terms entered into now affect them very differently down the road? (for example, if assets divided were to significantly reduce in value or one party was to earn much less etc)  This situation came before the High Court on two occasions recently and the courts have taken the view that unless the change that has occurred makes the previous terms impossible to comply with they will be very reluctant to alter what was intended to be the final settlement.

 

Criteria to Alter

If a party is looking to re-visit their settlement, as well as the above, they will have to show the court that:

1. New events have taken place since the previous court order was made;
2. These new events happened relatively soon after the previous order;
3. They have not delayed in making their application to alter the old terms;
4. No other party who may have an interest in any of the assets involved will be negatively affected if a change to the order is made.

 

Recent cases provide those who have entered into Judicial Separations and Divorces some certainty, in that the terms which result will seem to stand unless there are exceptional circumstances which would make it unjust and unfair for them to remain.