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The Impact of Recession on Family Law Cases

In recent months Ireland has moved from a situation of economic growth and rising property prices to one of economic and financial downturn.

The consequences of this from a Family Law perspective are couples facing uncertainty re ongoing income, decreasing values of properties, businesses and other family assets.

Family Law practitioners and the Courts now have to adopt more creative ways of dealing with Family Law cases.

The starting point for any discussions regarding Ancilliary Orders to be made by the Courts in proceedings under the "Judicial Separation and Family Law Reform Act 1989" and the "Family Law Divorce Act 1996" is that consideration is given to "proper provision" been made for spouses and dependant members of the family.

"Proper provision" might be ensured in many ways following a separation or divorce for example by sales of property, division of proceeds, transfer of property form one party to another, ongoing maintenance payments, division of company shareholding, Pension Adjustment Orders etc.

As a result of the downturn in the economy a number of cases which were finalized before the Courts in 2006 and 2007 are now the subject of applications to vary.

Under the Family Law Acts applications to vary can be made in respect of the following Ancillary Relief Orders:

1. (Maintenance Pending Suit)
2. Periodical Payment Orders.
3. Secured Periodical Payment Orders.
4. Lump Sum Orders
5. Property Adjustment Orders
6. Orders for the exclusive right of residence or sale of the family home
7. Financial Compensation Orders
8. Pension Adjustment Orders
9. Pension Preservation Orders (following Judicial Separation)

In a recent judgment given by Mr. Justice Abbott in the High Court on October 31st 2008 of KVK an application was made by the husband to vary a lump sum Order of €10,000 to be paid in 1996 by his wife for his share in the family home. He had asked the Court that this lump sum Order now be paid with interest since the value of the house had increased substantially since 1996. The application was refused.

In this judgment consideration was given as to the provisions regarding variation in the various family law acts. The test to ground an application to vary is "if the change in circumstances were of such a fundamental nature that it would be unfair to ignore such changes".

The Courts are now having to adopt different approaches to the Orders that are made in family law matters such as consideration being given to:

1. Retention of Succession Act rights for Dependant Spouse may become more the norm in these times of financial uncertainty.
2. Rights of Third Parties are increasingly being taken into consideration by the Courts for example the rights of employees of a business which is owned by both spouses and the rights of new partners of either spouses.
3. In a number of cases recently the Courts have ordered that the status quo of companies remain as there was insufficient funds to buy out either parties interest in the company.
4. Courts are increasingly placing review dates on orders which have been made.

There is an increasing need in the light of escalating legal costs and decreasing levels of matrimonial assets to settle family law cases. Family Law practitioners have now to become more proactive in the running of their cases and innovative in their approach in how they deal with Family Law matters.

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.

This news section contains stories of interest from publicly available news sources. Where we are representing the clients referred to in the news material we will say so. Where we do not represent individuals or bodies mentioned or quoted, the inclusion of the news story in our news section is not intended nor should it be taken to imply that we act for the individual or body concerned.