The Family Law Courts in Ireland have considerable powers to make additional orders, called ancillary orders, in divorce and judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 , the Family Law Act, 1995 (judicial separation proceedings) and the Family Law (Divorce) Act, 1996 (divorce proceedings).
The main factor determining these orders is the need to make “proper provision” for spouses and dependent members of the family.
The Courts also have the power to make preliminary orders in relation to judicial separation and divorce proceedings and these will be granted before the full hearing involving divorce or judicial separation.
An example of such a preliminary order is called a maintenance pending suit order which allows for maintenance payments to be made prior to the hearing of the divorce or Judicial separation proceedings. Domestic violence can also be dealt with through a preliminary order.
Custody and access orders
Custody and access arguments can be dealt with by way of preliminary order also as well as at the substantive hearing of the proceedings. Remember though that orders concerning access and custody can be obtained even where divorce or judicial separation proceedings are not contemplated under the Guardianship of Infants Act 1964.
It is worth noting also that even where divorce takes place a divorced person can still avail of relief under the Domestic Violence Act, 1996 even though ordinarily the person would not be considered to be a spouse in the eyes of the law once the decree of divorce is granted.
Financial Provision on Marriage Breakdown
Financial provision can be made on the breakdown of a marriage under the following broad headings:
The common law duty for spouses to maintain one another is continued in the legislation covering marital breakdown and survives the ending of the marriage. The liability to maintain a former spouse only ends when that spouse dies or remarries.
This duty continues despite the execution of a separation agreement or an order of judicial separation or divorce.
Three types of maintenance order can be made under the Family Law Act, 1995:
a periodical payments order
a secured periodical payments order
a lump sum payment order.
The Family Law Act, 1995 also allows a court to make an attachment of earnings order at the same time as the making of a periodical payments order without any default in payment having taken place.
All ancillary relief orders will be granted by the Court in the light of ‘proper provision for each spouse and for any dependent member of the family…’
Property-The Family Home
The Family Home Protection Act 1976 describes the family home as “primarily a dwelling in which a married couple ordinarily reside”.
When a marriage breaks down in Ireland and divorce or judicial separation proceedings are instituted the family home will loom large in considerations as for many couples it is the principal or only asset that they have.
Property Adjustment Orders and Preliminary Orders
Courts can make property adjustment orders in separation or divorce proceedings; in fact they can also make preliminary orders in respect of the family home which are orders which predate the hearing of the legal proceedings.
Courts have the power to make the following orders on separation or divorce :
I. Preliminary orders (effective until the hearing of the judicial separation or divorce proceedings)
II Property adjustment orders
1. The property to be transferred from one spouse to another or to another person
2. The reduction or extinguishment of any interest that a spouse has in the property
3. The settlement of the property to either spouse
However no order can be made in favour of a spouse who remarries and an application for a property adjustment order must be made during the lifetime of the other spouse.
The Courts can also order the sale of the family home but cannot do so if one of the spouses remarries and is living in the home with his/her new spouse.
All property adjustment orders can be varied except an order directing the sale of the family home and this has been carried out.
Property adjustment orders can also be made in respect of all types of property, not just the family home.
A spouse has an entitlement under the Succession Act, 1965 to one half (if there is no children) or one third (if there is children) of the deceased spouse’s estate.
However the Judicial Separation and Family Law Reform act 1989 allowed for the first time the extinguishment of the share to which the spouse would be entitled under the Succession Act, 1965 but only provided proper provision has been made for the spouse losing their succession entitlements.
This of course only applies in Judicial Separation cases as in divorce cases the “spouse” is no longer a “spouse” after divorce and loses Succession Act entitlements automatically.
However the Court will generally make allowance for this loss by making what it considers the necessary ancillary orders on granting a decree of divorce.
Pension adjustment orders
The Family Law Act, 1995 allows the making of a pension adjustment order which aims to allow the distribution of pension benefits by disregarding the terms of the pension scheme and either party can apply for this order.
However if you remarry you are prevented from applying for such an order.
It is important to note that any attempt by a separating couple to divide the benefits of a pension scheme between them will not work and will have no effect. Regardless of what an individual member of a pension scheme wants, the trustees of the scheme are obliged to be bound by the terms of the scheme.
If the parties come to agreement in relation to the pension then they will need an order of Court to effect that agreement and this can only be done after the granting of a decree of divorce or judicial separation by way of an order of Court.
If separating couples execute a deed of separation between themselves then they are depriving the Court of making an order in respect of the pension.
The recommended procedure would be to agree the terms of agreement between spouses, issue proceedings under the Judicial Separation and Family Law Reform Act, 1989 and an application to have the settlement terms made an order of Court and the relevant pension adjustment order made on consent.
Factors the Court Considers When Making Orders on Divorce and Judicial Separation
The factors the Court will consider when making these orders are
I. The actual and potential financial resources of both spouses
II. The actual and likely financial needs, obligations and responsibilities of both spouses
III. The standard of living of the spouses before the separation or divorce
IV. The length of marriage and the ages of the spouses
V. Spousal contributions-this is increasing in importance in the Court’s considerations and looks at not just financial contributions but time spent looking after home and family
VI. Earning capacity or lack of it due to time spent in the home due to marital responsibilities and the lack of future earning capacity due to the sacrifice of career made during marriage
VII. Statutory entitlements-any benefit or income either spouse is entitled to in law
VIII. Conduct-this is not a hugely important factor unless the conduct is egregious
IX. The accommodation needs of both spouses
X. Any separation agreement entered into by the spouses and which is still in effect
All of these factors will be considered under the overarching goal of attempting to ensure proper provision is made for both the spouse and any dependent members of the family.
It is noteworthy that even where there is a full and final settlement clause in the divorce the Courts can still make a change to any maintenance order as in Irish law there is really no “clean break”.
Procedure in the Circuit Court and High Court
The Circuit Court and the High Court have jurisdiction to hear
applications for divorce
decrees of judicial separation
applications for orders under the Family Law Act, 1995
applications for decrees of nullity.
Most of these proceedings will be commenced with a Family Law Civil Bill (Circuit Court) or Family Law Summons (High Court).
Where financial relief is sought it will be necessary to file an Affidavit of Means. Where there are dependent children involved, regardless of whether financial relief is sought, an Affidavit of Welfare must be sworn and filed.
Discovery is the procedure whereby both parties obtain full and detailed information about the other’s income, debts, assets, and liabilities. There are strict rules in the Circuit Court and High Court in relation to discovery.
By Terry Gorry