Tipp FM Legal Slot – 30th September 2014 – Proper Provision Marital Breakdown.
On Tipp FM, John M. Lynch, Principal Solicitor, spoke to Seamus Martin on ‘Tipp Today’ about Marital Breakdowns.
Listen to John’s discussion:
[soundcloud id=’170296988′]Proper provision marital breakdown
On the breakdown of the marriage if parties cannot agree as to the treatment of assets and on financial arrangements the matter would come before the courts that are mandated to determine “proper provision” for the parties involved.
Does the court consider joint income for the purposes of proper provision?
There are many factors which a Judge will consider in assessing what they deem to be proper provision – they will look at circumstances of both parties and will consider amongst others:
- Accommodation needs
- How long the parties have been married
- Children and their needs
- The standard of living of both parties during the marriage
- Income of both parties
- Age
- Earning capacity
- Contributions to the marriage including contributions to the family if a parent career or job prospects are sacrificed
- Special circumstances that may apply
Is there a minimum and maximum provision for children?
Financial arrangements are calculated based on an exchange of information on finances between the parents .This exchange takes the format of a document called an Affidavit of Means.
Full disclosure is essential – if all is not disclosed parties can be cross examined on details or additional information can be produced to counter what is in an Affidavit.
Any non-disclosure can have negative consequences where orders can be made against a party or they may find themselves in a situation where they may have perjured themselves to the court.
Based on this full disclosure and appropriate level is set.
The level is very much dependent on the circumstances of the family and the children involved.
Does quality of legal representation matter?
It can do in a court scenario – presenting your case in a court arena is very important and you will always want to put your best foot forward.
It is of paramount importance then that all relevant matters are put before the court in a way which highlights the outcome you are seeking and the reasons why.
It makes practical sense that a case presented to a court in a logical, coherent and comprehensive fashion it is easier for the court to deal with case and this can have advantages.
Bear in mind, however, no matter how well argued the case is , the Judge is the decision maker and will look to the detail of the case itself to make a decision.
This is why mediation can be a preferable option.
In many cases because control on any arrangements made will rest with the parties themselves as opposed to a Judge who may make decisions that no one wants or likes.
Is a jury involved?
No – a Judge alone decides family law matters if no agreement can be reached between the parties.
Cases are also held “in camera” which means that only the parties themselves, their legal representatives, the Judge and court staff would be present in the courtroom. There are certain exceptions for a limited court reporting and for witnesses who may be allowed to give evidence.
What if an agreement is reached but one party does not keep up there end of this?
If agreement is made we strongly advise that it be made a rule of court to formalise it – then this is enforceable as a Court Order is made on foot of it.
It is always recommended that any agreement would be reduced to writing and put before the court in this way so that any non-compliance can then be dealt with.
This is true even in the case of a mediated agreement – it should always be put in a legally enforceable format.
