Divorces in Ireland are governed by the Family Law (Divorce) Act 1996. The key concept in the ancillary reliefs obtained during a Divorce in Ireland is that of “proper provision”. There is a statutory and constitutional obligation that the Courts ensure that proper provision is made for spouses and any dependent children following a Divorce.
Section 20(1) of the 1996 Act states “The court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned”.
What is “Proper Provision”?
Although the term “proper provision” is not defined in the 1996 Act, Section 20(2) sets out factors which must be considered in determining what proper provision is, namely:
- The income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future,
- The financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise),
- The standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another, as the case may be,
- The age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another,
- Any physical or mental disability of either of the spouses,
- The contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,
- The effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,
- Any income or benefits to which either of the spouses is entitled by or under statute,
- The conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it,
- The accommodation needs of either of the spouses,
- The value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring,
- The rights of any person other than the spouses but including a person to whom either spouse is remarried.
While the 1996 Act has provided this list of factors to be considered, there is no guidance as to how they are to be employed. As such, every case is considered on its own set of facts and circumstances. The court has also held that no one factor is more importance than another.
The overriding criterion in each case will be that of fairness, and no ancillary relief will be ordered unless it is justified. At the outset, the Court will try to ensure that the accommodation needs of the parties and any dependants of the marriage are met, that there are sufficient funds for the maintenance of the parties and the children, that both parties (if possible) have access to a pension, and that there is provision for education including Third Level Education, where possible.
Separation Agreements, Divorces and Change of Circumstances
Parties may reach a Separation Agreement between themselves or mediate a Divorce agreement. In either case, such agreements should later be incorporate into a formal legal agreement and ruled by a judge. Although the courts have expressed support for parties agreeing matters between themselves, a Judge will have regard to the factors set out in Section 20(2) when any considering the fairness of any such agreement and will amend same if it does not “properly provide” for one party or if the circumstances of one or other of those involved have changed significantly since the agreement was entered into.
If the parties cannot reach agreement, it will be necessary to issue Court proceedings, and a Judge will determine how the assets ought to be divided and the maintenance payments which are to be made. Both parties will have prepared an Affidavit of Means and furnish vouching documentation supporting same. This will give the Judge an accurate picture of each party’s circumstances, and thus ensure that all parties, including any dependents are properly provided for.
If the parties entered into a Separation Agreement before obtaining a decree of Divorce, under Section 20(3), the court shall also have regard to the terms of such an agreement when considering “proper provision”.
This scenario was the subject of a landmark Supreme Court decision in the case of G v G  IESC 40. In this case, the Supreme Court ruled that a person who becomes wealthy following a separation is not obliged to increase the money paid to his or her spouse unless the increased wealth came from a joint project. In other words, proper provision for a spouse does not require a redistribution of wealth, and the standard of living to be considered is that which was enjoyed by the parties BEFORE the separation.
In G v G the Supreme Court noted inter alia:
- A separation agreement is a legal document entered into, on consent, by both parties and it should be given significant weight. This is especially the case if same was intended to be a “full and final settlement”
- Irish law does not establish a right to a “clean break”; it is however a “legitimate aspiration”.
- If circumstances are the same as when the separation agreement was signed, then the provisions made by the court will be the same, as long as they provide proper provision.
- If the circumstances of one or both spouses have changed significantly, the Court is to consider all the circumstances carefully. The requirement however to make proper provision is not the requirement for a redistribution of wealth.
- Relevant changes in circumstances may include the changed needs of a spouse, for example an illness.
- If a spouse acquires wealth after a separation, and such wealth is not connected to a joint enterprise, this is not a factor in and of itself to vest in the other spouse a right to additional money or assets.
- There is no automatic right to increase money or assets of a spouse as a result of increase wealth of the other spouse in the intervening period between the separation agreement and the subsequent divorce
- The court will consider the length of time between the separation agreement of the divorce – the greater the length of time, the less likely that the court will alter arrangements, save in exceptional circumstances
- The standard of living of a dependent spouse should be commensurate with that enjoyed when the marriage ended
- If a party has new needs (for example due to an illness) this will be a factor to be considered by the court
- Assets inherited after a separation agreement will NOT be treated as assets obtained by the parties during the course of the marriage
- A party should not be compensated for their own incompetence or indiscretions to the detriment of the other party
- Exceptional, unforeseen change is a relevant factor to be considered.
Therefore, parties should be aware that there is no provision for a “clean break” in Irish family law legislation, however the courts have tried to provide some sort of certainty in their reluctance to alter arrangements, save in exceptional circumstances where the Applicant can satisfy the Court that:
New events have taken place since the previous court order was made; These new events happened relatively soon after the previous order; They have not delayed in making their application to alter the old terms; 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.
Article by: Aoife O'Kane, Associate Solicitor at Augustus Cullen Law Solicitors. Augustus Cullen Law is based at 7 Wentworth Place, Wicklow. If you would like more information on this topic, call +353 404 67412 or email firstname.lastname@example.org
05 February 2021