Remedies following Divorce /JS

Different between properties

Community property

• More common in civil law regimes (but 9 states in US)

• Assets acquired during marriage are treated as shared

• Often a presumption that, unless property is separate property, it is subject to community property

• Equal split on divorce

  §  But…can also entail community debts – sharing of debts

Separate property

§  More common in common law regimes

§  Each spouse retains own income, assets during marriage

§  Debts are also separate (unless they are taken on jointly, or unless spouse acts as guarantor or surety)

§  Some assets may, however, be owned jointly (e.g. family home) but only if in joint names

§  In Ireland – subject to equitable redistribution on divorce

Ancillary orders

o   These are remedies available to the parties following Judicial Separation, Divorce and the Dissolution of Civil Partnership

o   They are available to either spouse, including the spouse against whom the divorce is sought

o   Such orders are not available on nullity in Ireland, though ancillary relief is available following nullity in Northern Ireland

They are usually available anytime after divorce

Judges have a lot of discretion with the overriding constitutional requirement being that of proper provision for spouse and children, article 41.3.2

Main features of the Equitable redistribution scheme

o   High degree of flexibility and discretion – maybe too much?

o   Lack of predictability

o   Strong emphasis on ongoing provision and support – no formal facility for a financial clean breaK

legislation regarding Equitable redistribution scheme

Family law act 1995

Family law divorce act 1996

Orders available for both spouses and dependent children

Dependent child

Child of both or either spouse

Natural-born, adopted, or being cared for by parents (in loco parentis)

Must be 18 except where in full time education (23) Or has a mental or physical disability (no age limit)

Proper provision - case law

Requirement to make proper provision lies on the spouses not on the State – see LB v Ireland [2015]

• Husband argued that he was entitled to compensation for property taken from him to make proper provision for his wife

• Supreme Court rejected this proposition, concluding that the State had no obligation to make proper provision for spouses; this obligation lay on the spouses.

Judges have a lot of discretion- T v T

• the trial judge must be regarded as having a relatively broad discretion in reaching what he or she considers a just resolution in all the circumstances

Homemaker cannot be treated less favourably because of their role within the home - T v T

• Article 41.2 - Homemaker role treated as equivalent to that of breadwinner

Financial clean break

A financial clean break would involve allowing the couple to cut their financial ties and obligations towards each other by making a ‘full and final settlement’ or obtaining a court order that presupposes the end of ongoing spousal obligations of support

Theory vs Practice of a clean break

o   In principle, Irish law does not facilitate a financial clean break, and the legislation seems to lean against it by allowing orders to be made at any time after divorce and existing orders to be varied

o   In practice, the courts tend to favour finality where possible, and there are strong dicta in favour of finality, subject to the overriding requirement to ensure proper provision

David Byrne - former EU commissioner in 1999

®   A no clean break policy had been deliberately chosen in respect of divorce.

®   Byrne reflects a strong concern to safeguard the position of the financially weaker party to a marriage, stressing the “enduring consequences” of marriage. 

®   He highlights the risk of what is sometimes called the ‘feminisation of poverty’, whereby economically weaker parties to a divorce, particularly stay at home parents, are cut off from spousal support and left in penury as a result. 

®   As a result, he concludes, “…once-off, financial settlements in the area of divorce…[are] not an option.”

Cases regarding clean break

JD v DD & MK v JP

• Clean break is neither permissible or possible

From 2002 onwards, strong judicial shift in favor of a clean break

F v F

• Courts have lead in favor of clean break

T v T

• courts approved of efforts to achieve some degree of certainty and finality where possible

KEANE CJ stated that ®   it was open to the courts to seek to achieve finality and discourage further litigation in the future

Ancillary orders

These are available following divorce, JS, etc

• Preliminary Orders

• Periodical Payments

• Lump Sum Orders

• Property Adjustment Orders

• Family Home/Shared Home Orders

• Sale of Property

• Pension Adjustment

• Final Compensation Orders

Preliminary orders

o   Orders regarding guardianship, custody and access

o   Should be able to apply for safety, barring and protection orders which relate to DV and children welfare - can apply for these while you wait for a divorce

Periodical Payments/Lump Sum Orders

o   'Maintenance'

o   Distinguish between

§  Family Law (Maintenance) Act 1976 (during the marriage)

§  s13 Family Law (Divorce) Act 1996 (following divorce)

o   Alot of the principles are the same

o   Periodical payments - payment you're ordered to make, usually on a monthly basis

o   Lump sum orders

o   Can sometimes be done on a phase basis - e.g. in sections but are still large sums of money

Property Adjustment Orders

Orders for the sale of property, includes personal as well as real property

Property can include fields and actual land but also legally speaking an animal such as a cat or dog, they are seen as property - court takes into account the welfare of the animal etc. if the two parties are fighting over the animal

Assets are valued as of the date of the hearing (e.g. T v T)

Family home orders

Order giving exclusive right of residence to one spouse (usually goes to the person the children are living w and at that it may only be for so long as the children do live w them)

Pensions

§  Court has authority in these circumstances to earmark or split the pension for benefit of one of the spouses

§  Earmarking v pension splitting (make a new pension out of the existing one is also an option) - very complicated

§  This allows the court to assign part of the benefit of a pension which has accrued during the marriage to the other spouse of for the benefit of the children

§  This may benefit the other spouse who may not have a pension or their pension is way less than the other spouses

Succession rights

Succession rights of spouse/civil partners are terminated by divorce/civil partnership dissolution

When couple get a JS, they are still technically married and succession rights are present - but the Court may rant an order to terminate these rights

Inherited property

In theory, everything owned by either party is 'up for grabs' where ancillary relief is sought

Courts may be more reluctant to order transfer of items such as inheritances acquired independently by one only of the parties alone - YG v NG

Criteria for ancillary orders

Proper provision (constitutional requirement)

In interests of justice (orders must be fair between the parties)

Factors the court must consider when deciding proper provision

Factors listed in the divorce act and judicial separation act

1. Income and earning capacity

2. Financial needs and obligations

3. Standard of living during the marriage

4. Duration of marriage

5. Age and health

6. Contribution to the family

7. Effect of marriage on earning capacity (if spouse had to give up on carear opportunity)

Consequences to nullity

o   Parties are not, and never were legally married to each other

o   Parties are free to marry other people

o   Benefits that attach to marriage are no longer available to the couple

o   No access to most ancillary remedies (contrast with judicial separation and divorce)

o   Children are non-marital children (though father will usually retain guardianship)

o   Couple may be entitled to some remedies