Are there guidelines for a separation agreement?

[Brendan Burgess]

I have noticed a few posts on askaboutmoney recently where something along the following lines is said "Under Irish law, she is entitled to half of everything you own"

In this example, a guy inherits €65k two years after his wife leaves him, and the advice is that he must give her half.

Is there any basis for these comments?

Are there guidelines for who gets what when a couple separate?

Is there even a presumption that they should split everything down the middle?

I thought that if a couple can't agree on a separation, then the judge will make a decision for them.

 

[alaskaonline]

Just recently read that the Supreme Court ruled that inheritance will not be factored in as "marriage assets" in a divorce settlement if couple have already been separated. That means the spouse who doesn't inherit can't claim 50% of the other spouse’s inheritance. When it comes to maintenance agreements, a judge would look at both affidavits’ and the spouse with the inheritance would now have this as his/ her asset stated. So based on that he/ she might be financially better off and then the judge rules appropriately regarding maintenance. However there is a legal limit of 150e per week per child max. so although it's not all good news, it's not bad news either.

On a general note there is no law stating an exact 50/50 share - although I would hope that most couples would go for that instead of getting greedy. If a couple can't agree one of them can apply to the District Court or Circuit Court but last one is certainly more expensive and should be seriously (re)considered.

 

[Brendan Burgess]

On a general note there is no law stating an exact 50/50 share - although I would hope that most couples would go for that instead of getting greedy.

If they had brought equal assets into the marriage and if it was a long term marriage, that might well be fair.

But if they have no children, and if they aren't married very long, 50/50 would be a very poor guideline.

 

[alaskaonline]

Well in all fairness when you get married you're planning to stay with that person for a long time with all the pro and cons. So same goes for when they do split up. I understand if they're only married for a year and in this case, should it go to Court, I doubt a judge would reward 50/50 share. Haven't said that, if they lived together in the same house for five years and then got married, the Cohabiting Act 2010 probably plays a part too.

 

[mf1]

Section 20 - 1989- Judicial Separation and Family Law Reform Act- our first Act acknowledging the reality of marital break up.

http://www.irishstatutebook.ie/1989/en/act/pub/0006/print.html#sec20

This is a very good starting point.

In broad terms, the Court will order adequate provision taking into account all salient matters.

Most cases settle - and settlement would be based on the particular circumstances and wishes of the parties and, broadly, what the lawyers believe a court might order.

I have known clients to seek to limit their exposure to the bare minimum and, equally, offer above and beyond what a Court might order.

mf

 

[Brendan Burgess]

MF1 - that answers my question. Thanks very much. There is no basis for a 50/50 split.

(2) As regards the exercise of the powers of the court under section 13 , 14 , 15 or 16 (a) or (b) of this Act in relation to a spouse, the court shall in particular have regard to the following matters—

(a) the income, earning capacity, property and other financial resources which each of the spouses has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before proceedings were instituted or before the spouses separated, as the case may be;

(d) the age of each spouse, the duration of the marriage and the length of time the spouses lived together;

(e) any physical or mental disability of either spouse;

(f) 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 the contribution made by each spouse to the income, earning capacity, property and financial resources of the other and any contribution by looking after the home or caring for the family;

(g) the effect on the earning capacity of each spouse of the marital responsibilities assumed by each during the period when they lived together and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family;

(h) any income or benefits to which either spouse is entitled by or under statute;

(i) 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 be repugnant to justice to disregard it;

(j) the accommodation needs of either spouse.

 

[xoxoxo]

If no agreement and it goes to court, first of all you may not get in on the day you have your hearing as the courts are too busy, judge happens to be ill etc (but still have to pay your legal team).
Then you wait 6 months for a new date (which a memeber of your legal team has to go in to get!!)
Then when you are lucky enough to get in front of a judge - it will all depend on the judge on the day - if judge is male/female, younger/older, familiar with one or other sides' legal team, how generous he/she is, whether he sides with one side or other, how his/her own relationship is with their spouse or partner, how many cases and the nature of the cases he/she heard that day, that week etc the mood they are in, how much of a hurry they are etc etc...... what they had for breakfast!!! Can go any which way. No set standards and in my view a very unfair judicial system.

If at all possible mediation and separation agreement the way to go - less stress and an awful lot less money!