Division of Assets
Division of Assets in a Marital Relationship
The Judicial Separation and Family Law Reform Act 1989, the Family Law Act 1995 and the Family Law Divorce Act, 1996 gives the court considerable powers to make preliminary and ancillary relief orders covering such matters as maintenance, lump sum maintenance, financial compensation orders, pensions, property adjustment orders in respect of the family home, property adjustment orders in respect of all other lands and property (both moveable and immovable). For example stocks, shares, savings, commercial property, holiday homes and family businesses.
The courts must ensure that not only proper provision is made for both parties, but also the manner in which the provision is to be made.
The court is directed both in judicial separation and in divorce to have regard to certain matters, before making such orders and these are the following:
- Actual and potential financial resources of both parties
- Financial needs, obligations and responsibilities, which each of the spouses have or are likely to have in the future
- Standard of living
- Age of spouses and length of marriage
- Disability
- Spousal contribution
- Earning capacity of each of the spouses
- Any income to which either of the spouses is entitled to, by or under statute e.g. social welfare payments
- Accommodation needs
- Conduct
- Future losses
- Third party rights
All of these matters are taken into account by the court. The courts are obliged to make such orders in relation to a division of assets to ensure that proper provision is made for each of the parties and any dependent children.
Division of Assets in a Non-Marital Relationship
Non-marital family is a term which describes not only two single people living together, with their children, but also a separated person living with another or somebody who has a foreign divorce, which is not recognised as a valid divorce in this jurisdiction.
Under Irish law cohabitants are treated less favourably than spouses in many areas such as:
1. Maintenance: An unmarried cohabitant has no legal right to seek maintenance from his/her cohabitant. Maintenance can only be applied for the support of the children of a non-marital relationship under the Family Law Maintenance of Children and Spouses 1976 and the Guardianship of Infants Act 1964. An application for such maintenance can be made in the District Court, Circuit Court or High Court depending on the value of the income and assets of the parties involved.
2. Property: Unmarried couples who purchase property together are treated less favourably by the courts than couples who are married. If an unmarried couple were engaged an application to determine their interest in the property can be made under the Family Law Act 1995. This application can be heard in the Family Law Courts, which are subject to the "in-camera rule", which means that cases are heard in private and not in the public arena. If parties are not engaged then the determination of property disputes remains outside the Family Law Courts and are heard in public.
Proceedings have to be issued under the Partition Acts 1868-1876. In the majority of cases the partitioning of sections does not work and in general the court orders sales of such property instead of partition.
Unmarried couples, who purchase property together, even if the property is purchased in joint name, need to be advised that this does not always ensure joint ownership.
If the parties have contributed unequally towards the purchase of the property then the presumption may be that the parties with the higher contribution have the greater interest in the property concerned.
3. Pensions: Cohabitants who are not married are not entitled to seek pension adjustment orders; as such orders can only be made on the granting by the court of a judicial separation or a decree of a divorce.
4. Succession Act Rights: Cohabitants in a non-marital relationship do not have the same succession rights as spouses. The succession act sets out only the succession rights of spouses and children, but cohabitants have no such rights.
Seeking Family Law advice
For further information, please contact Malcomson Law by calling 01 8744422 or by filling out an Online Enquiry Form. A solicitor who specialises in Family Law will contact you to advise you of your legal rights and entitlements.