Case Studies
Divorce-ancillary orders: Virtual Client Case
Below is a virtual case, similar to many Family Law cases that we are currently undertaking at Malcomson Law. This is not a real case and no real names are used in this article as we believe it will breach our client's confidentiality.
Name: Patrick and Joan
Legal Issue: Seeking Divorce
Age: 47 (Patrick) and 45 (Joan)
Occupations: Marketing Manager (Patrick) and Homemaker (Joan)
Property: 1 family home with no mortgage
Pension: Patrick - yes, Joan - no
Patrick and Joan's Story
Patrick and Joan are 47 and 45 respectively and have been married for 21 years. They spilt up 5 years ago when Patrick moved out. They are now seeking a divorce. Patrick is a marketing manager with Marketing Ltd and joined the company's pension scheme, when he started with the company twenty five years ago. Joan is a qualified book keeper but gave up her job when she had her two children, Conor and Fiona, who are now aged 20 and 16 respectively. She has no pension.
Joan lives with both children who are in full time education, in the family home, which is no longer mortgaged. Patrick is renting an apartment.
Legal Advice
The Court's have a large discretion in family law to ensure that "proper provision" is made for both parties. The entirety of both parties' assets will be examined to ensure equitable distribution. In this case, the courts would take into account factors such as the age of the parties and the lengthy duration of marriage together with the financial needs and earning capacity of the parties. The court will also look at the standard of living of both parties before the break up albeit acknowledging the hardship caused in dividing a household.
Divorce
Both parties are entitled to a divorce as they have been living apart for four out of the previous five years.
Children
Patrick will still be guardian to Fiona as she is still a minor. Custody and access are less pertinent given the ages of the children and the courts are unlikely to rule on same.
Maintenance
Maintenance must be paid by Patrick to Joan (as she has custody) in respect of both children as they are still dependant. Children under the age of 23 in full time education are considered dependant for the purposes of family law. Given the disparity in income, Patrick may have to pay maintenance to Joan. This will be assessed on the basis on both parties' affidavit of means, which is a sworn statement of income, outgoings and liabilities. The courts will look at Joan's financial needs together with her capacity to earn. It will take into account the potential difficulties she would encounter in re entering the workforce after such a long period.
Maintenance may be by way of lump sum or periodical payments. The liability for such payments will continue in respect of the children until they are 23 (or 18 and not in full time education) and in respect of Joan until her death or remarriage. It would not be affected by Patrick's remarriage. The amount payable may be varied if either party's financial circumstances change. Any maintenance payable to Joan (not the children) would be deducted from Patrick's taxable income.
Property
The family home is a significant asset in divorce proceedings, particularly in this case, given that there is no mortgage on the property. Joan's interest in the property is recognised even if she did not contribute directly to any mortgage payments. The courts would look at the effect of marriage on Joan's earning capacity and the fact that staying at home to care for the children freed up the family assets to make such mortgage payments.
Given that both children are still living at home, an order may be made allowing Joan to live there until the children are finished college, after which the property is to be sold and divided into allocated proportions. In doing this the courts will examine the earning capacity of both parties and their consequent ability to get a short term mortgage. It is highly likely that the court would give a higher proportion to Joan. Alternatively, the court may order that the family home be transferred into Joan's name. This factor would be taken into consideration later on when looking at Patrick's pension. In such a situation, if Patrick were to subsequently buy property, he would be treated as a first time buyer.
Pension
After the family home, the most valuable asset which a separating couple have in Ireland is often a pension. A court now has the power to treat a pension as an asset of the separating couple and order that it be divided into whatever shares it considers appropriate. If there is a valuable pension, an actuarial report will be required on same.
In this case Joan may be entitled to a proportion of Patrick's pension. Alternatively the pension may be spilt and placed into another pension fund in Joan's name. The pension is the last matter considered by the courts and an order will only be made in Joan's favour if proper provision has not already been made. Patrick may want to consider which asset is more valuable, the family home or the pension and trade one against the other i.e. if the family home were transferred into Joan's name, Patrick's pension may be left intact. The court will take the value of the pension into account when making orders as to the family home and maintenance even if no pension order is made.
Inheritance
An order can be made blocking Joan and Patrick's right to apply for a share in each other's estate.
If both parties can agree the terms of the divorce, the process can be simply ruled on by court and the matter is made cheaper and quicker. It should be noted that there is "no clean break" and even after the divorce has been granted, Joan and Patrick may come back to court to look for new orders or vary some of the existing orders. In order to do so, usually a change of circumstances would need to be proved.
Please note that this article is for information purposes only and does not constitute legal advice.
Seeking Family Law Advice
For further information, please contact Malcomson Law by calling 01 8744422 or by filling out an Online Enquiry Form. Your enquiry will be forwarded to a solicitor who specialises in Family Law.
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