Author: Terry Gorry

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Maintenance

Maintenance Orders in Family Law-All You Need to Know About Maintenance

maintenance-family-law

The Social Welfare act, 1993 obliges both spouses in a marriage to provide financial support for each other and their children. This is called maintenance.

maintenance-order-ireland

Maintenance is also known as periodical payments orders after a divorce or judicial separation.

The Family Law (Maintenance of Spouses and Children) act 1976 governs the making of maintenance orders or periodical payments orders in Ireland.

Provision must be made for dependent children of the family and this includes children of both spouses or of either spouse. A dependent child is one who is under the age of 18 or 23 if in full time education.

Maintenance of Children

The Status of Children Act 1987 obliges the maintenance of non marital children.  In fact, both parents, regardless of their marital status-unmarried, married, separated, divorced-have an obligation to maintain their children financially.

In practice, this usually involves the parent who does not have custody paying maintenance to the parent who has day to day care and control of the children-custody. Because the parent who has custody has the day to day costs associated with the children.

Since the enactment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 civil partners have a right to maintenance.

Qualified cohabitants, in certain circumstances such as where the relationship ends through death or separation. However there is no automatic right to such orders or any financial relief-the Court will decide based on the circumstances.

A Maintenance Order

To apply for a  maintenance order under the Family Law (Maintenance of Spouses and Children) act 1976 you must be a spouse and there is facility to apply for an interim maintenance order prior to the hearing of the application for a maintenance order.

A maintenance order compels a spouse to make periodic payments to the other spouse. The amount and times of payment will be directed by the family law Court.

The Status of Children Act, 1987 changed the situation in relation to unmarried parents and maintenance for dependent children.

 

Maintenance of Spouses and Dependent Children
Maintenance order. 5.—(1) (a) Subject to subsection (4) of this section, where it appears to the Court, on application to it by a spouse, that the other spouse has failed to provide such maintenance for the applicant spouse and any dependent children of the family as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that the other spouse make to the applicant spouse periodical payments, for the support of the applicant spouse and of each of the dependent children of the family, for such period during the lifetime of the applicant spouse, of such amount and at such times, as the Court may consider proper.
(b) Subject to subsection (4) of this section, where a spouse—
(i) is dead,
(ii) has deserted, or has been deserted by, the other spouse, or
(iii) is living separately and apart from the other spouse,
and there are dependent children of the family (not being children who are being fully maintained by either spouse), then, if it appears to the Court, on application to it by any person, that the surviving spouse or, as the case may be, either spouse has failed to provide such maintenance for any dependent children of the family as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that that spouse make to that person periodical payments, for the support of each of those dependent children, for such period during the lifetime of that person, of such amount and at such times, as the Court may consider proper.
(c) A maintenance order or a variation order shall specify each part of a payment under the order that is for the support of a dependent child and may specify the period during the lifetime of the person applying for the order for which so much of a payment under the order as is for the support of a dependent child shall be made.
(2) The Court shall not make a maintenance order for the support of a spouse where the spouse has deserted and continues to desert the other spouse.
(3) Where the applicant spouse has committed adultery, then-
(a) if the other spouse has condoned or connived at, or by wilful neglect or misconduct conduced to, the adultery, the adultery shall not be a ground on which the Court may refuse to make a maintenance order for the support of the applicant spouse,
(b) if the other spouse has not condoned or connived at, or by wilful neglect or misconduct conduced to, the adultery, the Court may, notwithstanding the adultery, make a maintenance order for the support of the applicant spouse in any case where, having regard to all the circumstances (including the conduct of the other spouse), the Court considers it proper to do so.
(4) The Court, in deciding whether to make a maintenance order and, if it decides to do so, in determining the amount of any payment, shall have regard to all the circumstances of the case and, in particular, to the following matters—
(a) the income, earning capacity (if any), property and other financial resources of the spouses and of any dependent children of the family, including income or benefits to which either spouse or any such children are entitled by or under statute, and
(b) the financial and other responsibilities of the spouses towards each other and towards any dependent children of the family and the needs of any such dependent children, including the need for care and attention.

Source: Family Law (Maintenance of Spouses and Children) Act, 1976, section 5.

You will have to show that the other spouse has failed to provide proper maintenance in the circumstances and ultimately the Court will decide what is appropriate in each case. It is not necessary that the spouses are living apart.

A maintenance order can be varied (changed) or discharged after one year where there is a good record of payment.

How is the amount of maintenance calculated?

Firstly, a Court will only make an order for maintenance where the respondent spouse has failed to make proper provision in the circumstances of the case.

To decide on the amount of any order the Court will look at

I.     The income, earning capacity and financial resources of both parties and their dependent children

II.     The financial responsibilities of both parties

III.     The conduct of both parties (less important now as “need” is the principle criterion)

So, it will boil down to the needs of the applicant spouse and children and the resources of the respondent spouse.

The overall goal of the Court will be to make proper provision in each case and will have to balance the needs of one party and the children against the resources of the other spouse.

Generally if one spouse is involved in another relationship this too will be taken into account. Variation of maintenance orders can be obtained if circumstances change significantly and there is also provision for lump sum payments to be made although the max. that the District Court can order is €6,348.69.

The leading case dealing with the criteria  to decide on the amount of a maintenance order is R.H. v N.H. 1986 which set out

  1. after separation, there are two households
  2. the Court must look at the minimum reasonable requirements of the dependent spouse and children
  3. the Court must look at the income and/or earning capacity of the dependent spouse
  4. the Court must find out the net income of the dependent spouse (if there is assets generating little income the Court will order these to be sold)
  5. the Court must find out the minimum reasonable requirements of the respondent spouse. This is the most important factor-the ability of the respondent to pay.

Generally, second relationships and the income or expense of that relationship is taken into account in making an order for maintenance.

Spousal conduct can lead to a spouse being barred from obtaining a maintenance order in respect of him/herself but will still be able to get one in respect of children.

The Status of Children Act, 1987 allows a parent to apply for maintenance against the other parent in respect of the child where the child is born outside marriage.

The Family Law Act, 1995 provides for the making of lump sum payments which can be made in addition to or instead of periodical payments. The maximum allowable in the District Court is €6,348.69.

Maintenance Agreements

Parties can reach agreement themselves in respect of maintenance. This can be simply in respect of maintenance or as part of a separation agreement. However, the parties can still go back to Court and cannot exclude the operation of the Family Law (Maintenance of Spouses and Children) act 1976. The 1976 Act also allows any agreement to be made a rule of Court, provided it is ‘fair and reasonable’.

The max. payment that the District Court can order by way of maintenance orders is €150 per week per child and €500 for the spouse. The Circuit Court has unlimited jurisdiction.

But regardless of the formalities of divorce or judicial separation each spouse can enter into an agreement to provide for each other and dependent children. It is important to note though that even if parties do come to an agreement themselves neither party is prevented from going back to Court to seek an order for maintenance as there is no “clean break” recognized in Irish family law.

If the party who is obliged to pay maintenance refuses to do so there are various mechanisms which are intended to remedy this problem such as attachment of earnings orders and the Enforcement of Court Orders Act, 1940 or ordinary debt collection proceedings as the Enforcement of Court orders Act, 1940 only allows you to claim 6 months arrears maximum.

However, arrears going back further than 6 months can be pursued through ordinary debt collection proceedings.

In fact, the Family Law Act, 1995 provides that an attachment of earnings order will be automatically made on the granting of a maintenance order unless the respondent spouse can prove to the Court that he/she will make the payments without the necessity for it.

Maintenance Orders Made Abroad

Maintenance orders made abroad can be enforced in Ireland.

For example, the Maintenance Orders Act, 1974 allows the enforcement of orders made in the UK and the enforcement of orders made here in the UK. The Jurisdiction of Courts and Enforcement of Judgments Act, 1998 allows the enforcement of maintenance orders throughout the European Union. The Maintenance Act, 1994 provides for the enforcement of maintenance orders made in a wider range of countries than just the EU.

How to Apply for a Maintenance Order

Most maintenance applications will be brought in the District Court,unless a higher court is dealing with a related judicial separation or divorce proceeding.

You need to issue and serve a maintenance summons on the other parent. The form is 54.1/54.2/54.3,54.4/54.11. You can do this yourself or engage a solicitor.

And you may qualify for legal aid.

The maintenance summons must be served on the respondent at least 14 days before the Court date. This becomes 21 days if you don’t serve personally but serve by registered post.

After service, you must file the original maintenance summons and a statutory declaration of service in the District Court office-this must be done at least 2 days before the Court hearing date.

You then attend Court with your solicitor, unless you are making the application yourself, on the day  of Court in the summons.


By Terry Gorry
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Categories
Separation

Judicial Separation-The Grounds for Judicial Separation and the Difference from Divorce

judicial-separation

There are now two ways to legally end a marriage in Ireland-divorce and judicial separation. The Judicial Separation and Family Law Reform Act 1989 gives the Court wide discretion to make orders in relation to the granting of a decree of judicial separation.

One significant difference between divorce and judicial separation in Ireland is the element of “fault”-there is no requirement to show fault on behalf of one of the parties in a divorce decree but there may be such a requirement to obtain a decree of judicial separation, depending on which of the 6 grounds you choose.

Other differences between divorce and judicial separation are:

  1.  a divorce allows both parties to remarry, while judicial separation does not
  2. the arrangements between the parties in a judicial separation may be reviewed and changed when a Judge is being asked to grant a divorce.

The grounds for judicial separation

The Judicial Separation and Family Law Reform Act 1989 provides 6 grounds for the granting of judicial separation by either the Circuit Court or High Court.

1.  Adultery

Adultery is a ground for judicial separation and while it can be difficult to prove, it can be inferred from the circumstances.

2.  Behaviour

The behaviour of one of the parties which renders it impossible for the other party to live with the offending party is also a ground. Physical and mental cruelty provides the basis of this reason for judicial separation.

3.  Desertion

Desertion by one of the parties is another ground but it must be for a period of at least one year and continuous. Constructive desertion, where one party deserts because of the bad behaviour of the other party, is included in this ground for a decree.

4.  The parties agree and have lived apart for at least 1 year

The living apart must be continuous and the reasons for doing so are irrelevant provided both parties agree to judicial separation.

5.  Normal marital relationship has not existed for at least 1 year

Where a normal marital relationship has not existed for at least 1 year and regardless of the presence of fault, a Court may grant a decree under this heading. There is no definition of what a ‘normal marital relationship’ in the legislation.

Nevertheless, this is the most common basis for the grant of a decree of judicial separation.

6.  The parties have lived apart for at least 3 years

Under this ground there is no need to show fault-this is a useful ground where there is no fault and the other party will not consent.

Note: the advantage of applying for a decree of judicial separation on the grounds of adultery or cruelty (numbers 1 and 2 above) is the applicant spouse does not have to wait 1 year to issue proceedings.

Welfare of children in Judicial Separation

Once one of the six grounds for judicial separation outlined above is proven on the balance of probabilities a court will grant a decree of judicial separation PROVIDED the welfare of any dependent children of the marriage has been provided for.

A dependent child is a child who has not reached the age of 18 or the age of 23 if in full time education.

Welfare is concerned with the religious, moral, intellectual, social and physical welfare of the dependent child.

3.—(1) Where, on an application under section 2 of this Act, the court is satisfied that any of the grounds referred to in subsection (1) of that section which have been relied on by the applicant have been proved on the balance of probabilities, the court shall, subject to subsection (2) of this section and sections 5 and 6 of this Act, grant a decree of judicial separation in respect of the spouses concerned.

(2) (a) Where there are, in respect of the spouses concerned, any dependent children of the family, the court shall not grant a decree of judicial separation unless the court—

(i) is satisfied that such provision has been made, or

(ii) intends by order upon the granting of the decree to make such provision,

for the welfare of those children as is proper in the circumstances.

(b) In this subsection—

“dependent children of the family” has the same meaning as it has for the purposes of Part II of this Act;

“welfare” comprises the religious and moral, intellectual, physical and social welfare of the children concerned.

(3) Upon the granting of a decree of judicial separation by the court, the court may, where appropriate, by order give such directions under section 11 of the Guardianship of Infants Act, 1964 , as it thinks proper regarding the welfare or custody of, or right of access to, an infant (being an infant within the meaning of that Act) as if an application had been made under that section.

Source: Section 3, Judicial Separation and Family Law Reform Act, 1989

Solicitors obligations

A solicitor involved in  judicial separation proceedings is obliged by law to discuss with his/her client the possibility of reconciliation and mediation and negotiation of a separation agreement satisfactory to both parties.

If the Court is satisfied that all of this has occurred it may grant a decree of judicial separation and once this is done the court may make further ancillary relief orders which we look at elsewhere on this site.

Judicial Separation and Separation Agreements

Separation agreements drawn up and agreed between parties and Judicial Separation are very different animals with one significant factor that you must be aware of..

Since a decision of the Supreme Court in 1998 in P.O’D v A.O’D a separation agreement agreed between 2 parties is a bar to the subsequent obtaining of a Judicial separation.

The hugely significant factor in this decision is that without a Judicial separation  you are not entitled to look for any of the large range of property and financial reliefs under the Family Law Act, 1995.

The reason for this is that the Supreme Court held that it would not be right to go behind the separation agreement freely entered into by two consenting adults by one of the parties seeking a Judicial separation which would have the effect of tearing up the separation negotiated and entered into freely by both parties.

However a separation agreement cannot act as an impediment to seeking relief in maintenance proceedings under the Family Law Act 1976 (Maintenance of Spouses and Children) nor can it prevent divorce proceedings from being instituted.

However any subsequent divorce proceedings will be heavily influenced by the separation agreement entered into by the parties.

The influence of the separation agreement will depend on

  • The circumstances surrounding the agreement

  • When the agreement was negotiated and executed.

By Terry Gorry
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Categories
Legal Aid

Family Law Legal Aid in the District Court

family-law-legal-aid

Many people require subsidized legal aid for family law problems and there are two panels of solicitors maintained by the Civil Legal Aid board for family law matters.

One panel deals with divorce and separation cases and the other panel, the District Court panel of solicitor’s scheme, deals with maintenance, domestic violence, custody, guardianship and access.

The District Court scheme requires that you make an application to your local family law centre to bring proceedings in the District Court under one of the headings of guardianship, access, domestic violence, maintenance and custody. If you are deemed to be eligible (income under €18,000 per annum and your case must have merit) then the family law centre will issue you with a legal aid certificate.

Once you are granted this legal aid certificate you will normally be given the list of solicitors on the family law District Court panel and asked to choose one to act for you.

You then give part III and part IV of the legal aid certificate to the solicitor and this will set out what legal action is authorised on your behalf. Your solicitor will then act on your behalf and institute the proceedings that he/she is authorised for.

Financial eligibility for civil legal aid

To qualify for civil legal aid your annual income must be less than €18,000 and your capital resources (such as property) must be less than €320,000. You must make a contribution to the cost of this service and this will range from €10 for legal advice and €50 for legal aid.

Merit of your case

Your case must have merit also and this is a matter for the family law centre to decide.

Your first step in this process is to call to your local law centre and make an application. Here is a link to a list of these law centres listed by county.

Terry Gorry & Co. Solicitors is on the panel of solicitors for the District Court scheme and is eligible to provide services in Dublin, Kildare, Meath and Westmeath.


By Terry Gorry
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Non Marital Family

The Non Marital Family-Guardianship, Access, Custody, Maintenance Essentials

non marital family

The Irish Constitution envisages the ‘family’ as one based on marriage alone. Clearly this leads to huge difficulties for the many non-marital families in Ireland. (This article should be read in conjunction with this one which deals with changes in January, 2016).

However it has been held that non marital children have the same ‘natural and imprescriptible rights’ as marital children under article 42 of the Constitution.

Unlike the rights of the family under article 41 of the Constitution, the rights of the non-marital mother to the custody and care of her child can be transferred or lost if she abdicates her rights and duties to the child.

However, the non-marital father has no such constitutional rights and has no natural rights to the custody of the child (unlike the non-marital mother).

Before the Status of Children Act, 1987 a  non-marital child was ‘illegitimate’ and could not be legitimated even if the parents married. The Status of Children Act, 1987 provides that the ‘illegitimate’ child becomes legitimate once the parents marry.

Guardianship

Prior to the Status of Children Act, 1987 the guardian of a non-marital child was the natural mother. After the passing of this act, a father can now apply to be made a joint guardian with the natural mother under section 12.

A father can also become a guardian under an informal procedure provided by the Children Act, 1997 provided the mother agrees. This involves a statutory declaration signed by both parties.

Guardianship means that a guardian must be consulted in relation to all aspects of the child’s upbringing.

All applications for guardianship will be considered in the light of the welfare of the child as set out in the Guardianship of Infants Act, 1964.

The non-marital father can apply to Court to become a guardian under section 6 A of the Guardianship of Infants Act, 1964.

However the Children Act, 1997 provides for a simpler way of the father becoming a guardian by way of a statutory declaration of both parents agreeing to the appointment of the father as a guardian. (S.I. No. 5/1998 — Guardianship of Children (Statutory Declaration) Regulations, 1998) This does away with the need to attend Court to be appointed a guardian.

Once the father has been appointed, he can only be removed by the Court.

Section 43, Children and Family Relationships Act, 2015 improved the situation further for unmarried fathers by providing guardianship for unmarried fathers:

have been cohabitants for not less than 12 consecutive months occurring after the date on which this subsection comes into operation, which shall include a period, occurring at any time after the birth of the child, of not less than three consecutive months during which both the mother and father have lived with the child.

Custody and Access

Custody is the date to day physical care and control of the child.

Access is the right to see and communicate with the child.

As outlined above, the natural mother has a constitutional right to the custody of the child but the natural father does not in a non-marital family.

However, the father can apply to Court for a custody and access order under the Guardianship of Infants Act, 1964, section 11(4).

The most common applications by fathers is for an access order but he may also seek custody where the child is not being looked after by the mother.

Maintenance

An unmarried man or woman has no legal entitlement to seek maintenance from the other party for him/herself. However, he/she can seek maintenance for the support of the children (Family Law (Maintenance of Spouses and Children) Act, 1976)

The Status of Children Act, 1987 provides that a maintenance order cannot be made against a person unless it is proved on the balance of probabilities that the person is the parent.

Succession

Since June, 1988, thanks to the Status of Children Act, 1987 children born outside of marriage have the same succession rights as marital children.

This means that a child born outside marriage can bring legal proceedings challenging a parent’s will if s/he is disappointed and can claim a share of the parent’s estate where there is no will.

It is strongly advisable for a single mother to make a will nominating guardians in the event of her death. If she doesn’t, the child will have no guardian.

The Status of Children Act, 1987 also provides for declarations of parentage. These types of declarations are important in probate cases.

Where parentage is in question, Courts can order the taking of blood tests or DNA tests.

The Status of Children Act, 1987 also introduced a presumption of paternity. This means that it is presumed that the father of a married woman’s children is her husband. However, this presumption can be rebutted with the appropriate evidence.

Provisions for the registration of births are set out in section 49 of the Status of Children Act, 1987.

The Domestic Violence Act, 1996 extended the protection of barring and protection orders to cohabitees.

An unmarried person does not enjoy the protection of the Family Home Protection Act, 1976. Property disputes between an unmarried couple cannot be pursued within the family law Courts.

Cohabitation agreements and non-marital contracts are not recognised in Irish law as they are seen as contrary to public policy. However agreements regulating financial and property matters are enforceable as long as they are not conditional on the parties performing ‘marital duties’.

By Terry Gorry
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Categories
Separation

Separation Agreements in Family Law in Ireland-The Facts You Should Know

separation-agreements

Separation agreements in family law in Ireland are agreements drawn up by the parties to a broken down marriage who wish to avoid the Courts to resolve their differences.

Terms of separation agreements

Most separation agreements will deal with an agreement for the parties to live apart and further matters commonly covered will include access to children if any, maintenance, custody, division of property and any other relevant matters that the parties wish to commit to writing.

The agreement to live apart should contain a date when this will commence as this date will be important if either party wishes subsequently to obtain a divorce.

Non molestation

A common clause in separation agreements is a “non-molestation clause” which simply prevents the disturbance or annoyance of one party by the other after execution of the agreement.

Custody and guardianship

The issues of access and custody where there are children under 18 are important matters to cover and agreement may have been agreed between the parties about sole or joint custody.

Matters in this section may also deal with bringing a child abroad and out of the jurisdiction and detailed arrangements for access.

Remember that even where parties separate both married parents remain joint guardians of children under 18.

Property

Matrimonial property is obviously a big issue to be dealt with in separation agreements. Common situations include one of the parties staying in the family home, perhaps until children reach the age of 18, and then the home being sold and proceeds split.

An alternative is for one party to buy out the other party’s interest in the property and become the sole owner on payment of an agreed lump sum.

Maintenance

A separation agreement should make provision for the payment of maintenance by one spouse to another and this will normally be the subject of extensive negotiations.

The existence of agreement in relation to maintenance does not prevent a spouse from going to the District court to seek a maintenance order under the Family law act, 1976. However the Court will consider the existence of the separation agreement terms which deal with maintenance in any order it might make.

Other matters that might be considered for inclusion in any separation agreement include

  • Taxation-the receipt of maintenance by the custodial parent is taxable so the question of election to be taxed as a single person or jointly might be considered. The receipt of maintenance designated for the support of children is not taxable though.

  • Succession rights-the parties may renounce their succession rights to their share of the estate of the other party under the Succession Act 1965

  • Pensions-pensions in a separation agreement can be a complex issue and you would be well advised to take taxation advice if the pension is substantial

  • An indemnity-most agreements will have a clause which indemnifies each party against any debts subsequently incurred by each party.

The separation agreement can be made a rule of Court-the advantage of this is that any failure to uphold the agreement can be remedied by going into Court for a contempt of Court ruling. In addition any maintenance payments can be made through the District Court clerk which will afford a greater degree of security when it comes to enforcing any failure to pay.

Separation Agreements and Future Legal Proceedings

As a separation agreement is a binding contract, subsequent judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 are not possible.

This means that a spouse is precluded from seeking the extensive range of financial and property reliefs available under the Family Law Act, 1995. A pension adjustment order is also out of the question as this is granted under the Family Law Act, 1995.

Separation Agreements and Divorce Proceedings

However a separation agreement is not a bar to subsequent divorce proceedings under the Family Law  (Divorce) Act 1996 and in deciding upon divorce proceedings the Court will have to “have regard” for the terms of any separation agreement.

The difficulty can arise though where divorce proceedings are brought some time after the separation agreement has been entered into and the financial fortunes of either or both parties have changed significantly.

In K v K [2003] High Court decided that the Court had to decide what was “proper provision” at the date of divorce, not the date of the separation agreement and this can lead to a significant redistribution of the assets.

In circumstances where the separation agreement precedes the divorce proceedings fairly recently in time then there probably will not be any reason for a significant departure from the provisions of the separation agreement (unless of course there has been a material change in financial circumstances of the parties).

In M.P. v A.P. 2005 High Court the Court held that the weight to be placed on a Judicial Separation Consent Agreement in divorce proceedings will depend on

  1. The length of time since agreement was reached;

  2. The financial background pertaining to the Consent Agreement;

  3. The reasonable expectation of the parties.

If your marriage has broken down you should consult a solicitor who will explain the various options open to you and any pitfalls to avoid.

Full and Final Settlement in Separation Agreements

Does a ‘full and final settlement’ in a deed of separation or on Consent Terms in a judicial separation actually mean what it says? In other words, can either party get a ‘second bit of the cherry’ at the time of divorce?

Firstly, the Courts are obliged under section 20(3) of the Family Law (Divorce) Act, 1996 to ‘have regard’ for any separation agreement entered into:

(3) In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force.

However, this does not prevent Courts from making further additional provision to ensure ‘proper provision’ for spouses and dependent children as has been seen in various decided cases and the Supreme Court has found that Courts have ‘very broad discretion’ in these cases.

Section 14 of the Family Law (Divorce) Act, 1996 allows for property adjustment orders to set aside the terms of previous agreements to ensure proper provision at the time of divorce.

Courts have been seen to vary in what weight they attach to previous agreements but the following general points can be made:

  1. Courts will have regard to prior agreements and the circumstances of that time;

  2. Courts’ ability to make proper provision for spouses and dependent children cannot be ousted by a deed of separation or consent terms in judicial separation;

  3. The court will consider the financial resources of both parties at the time of divorce;

  4. More recent settlements will have greater weight than older ones as the circumstances of both parties are less likely to have significantly changed;

  5. A full and final settlement reached at the time of divorce will have greater weight than one reached on judicial separation;

  6. Courts may be less likely to intervene where generous provision was made for the less wealthy spouse in a prior settlement;

  7. Prior settlements are more likely to be revisited where proper disclosure was not made at the time

  8. The source of assets of the marriage, for example inherited assets introduced by one spouse to the marriage, will carry some weight.

All of these cases tend to be decided on the particular circumstances of each case so hard and fast guidelines or rules are difficult to arrive at.

Important Supreme Court G V G case

The Supreme Court made a significant ruling in 2012 when it decided the “G v G” case. This case looked at the question of how much weight or regard should be given to a previously agreed deed of separation when it comes to divorce time.

The Supreme Court made the following determinations:

  1. A deed of separation should be given significant weight when it comes to making provision for the parties at a later divorce hearing, especially when the deed of separation contains a “full and final settlement clause”; exceptional circumstances would be needed for a court to upset the separation agreement freely entered into-for example, substantial change such as the illness of one of the parties
  2. A clean break is a legitimate aspiration in Irish law, but it is not a guaranteed right and “proper provision” may see a change in circumstances being reflected in the final divorce ruling provisions
  3. Inherited assets should not be seen as assets obtained by both parties in the marriage

“Second bite of the cherry” cases have become more difficult as a consequence of this Supreme Court decision and parties can enter into deeds of separation which contain full and final settlement clauses with greater confidence that they will not be overturned later on.