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Archive for January 25th, 2011

I’m sick of my Marriage and want a Divorce and to keep my Money !

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13_09_30_divorce[1]Q: My name is John and I am 59 years of age and my wife is 57 years. We have 2 children aged 28 and 34 who are self-sufficient. I am sick of my marriage and want to get a divorce. I work in the bank and my wife just looks after the household. My wife used to drink a lot although hasn’t had a drink in about 5 years and attends AA. She used to be very difficult to be around with her drinking though. I have been quite responsible over the years and made good investments and between my family home, savings and pension have about €5million. I would like to retire soon and although I want to separate from my wife and get a divorce, I don’t want to give her all my money. Her behaviour when she used to drink was embarrassing and I think that is reason enough for me to leave and give her nothing. How can I get a divorce and keep my money or what is my wife likely to get if we went to court??

A: This case is an example of what the Courts refer to as an “ample resource” case. There are not many of these cases left going through the Court system as there is not many households in the current economic climate that are worth or have savings of approximately €5million. Upon reading the question posed above I would say that John is a successful bank employee and his wife a fulltime mother and homemaker. The children are aged 28 and 34 and therefore no longer legally dependant.

Divorce – firstly it must be noted that in Irish law the parties must be separated 4 out of the previous 5 years in order to obtain a decree of Divorce (section 5, Divorce Act, 1996 and the Constitution). If John decided to go to Court it would be Judicial Separation proceedings he would have to pursue at this time. Judicial Separation is almost identical to Divorce save that you cannot remarry if you have a Judicial Separation. Section 2 of the Judicial Separation and Family Law Reform Act, 1989 contains six different circumstances which you can plead in order to obtain a Judicial Separation with the most common section being section 2(1)(f) being that “the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application”. Other grounds include adultery, behaviour, desertion, lived separate and apart for a year and there is consent of the other party, lived separate and apart for 3 years. In both divorce and judicial separation a “clean break” is desirable but never 100% possible. A spouse or former spouse can always go back to court in relation to access and maintenance. In both cases a court will ensure that ‘proper provision’ is made for both parties. In divorce, however, there is a constitutional obligation on a court to ensure that proper provision has been provided. Finally, a court must be satisfied that there is not prospect of reconciliation between the parties.

Wife’s behaviour – John’s wife, it would seem, had an addiction to alcohol at one point. The fact that she has stopped drinking the last 5 years would seem to mean that her behaviour has not been the reason for the breakdown of the marriage. In any effect, for conduct to be taken into account in Irish law it must be “gross and obvious”. Over the years the term “gross and obvious” has been given a very high threshold and has said to constitute such behaviour as physical or mental abuse. I am of the view that it is unlikely that the wife’s alcoholism would equate to “gross and obvious” conduct on her part. This is subject to further details being provided as to the full extent of the wife’s past behaviour.

What would wife get in Court – this question can never be given a definite answer. In the words of Thorpe LJ in Cowan v Cowan [2001] 2FLR 192 at 213

“….even within the relatively narrow sphere of the big-money case the infinite variety of facts and circumstances thrown up in individual cases makes it dangerous to generalise or to attempt to distil principles”.

Family law cases are as individual as the people who are involved in them, and it is virtually impossible to find two cases which are identical. The Courts tend to look at three areas of the parties finances; income, capital, other. The ‘capital’ usually refers to the family home and/or other property and the ‘other’ usually refers to other financial resources such as pensions, insurance policies etc.

Proper Provision – Section 16 Family Law Act, 1995 governs proper provision in relation to Judicial Separation (section 20 Family Law (Divorce) Act, 1996 is the appropriate section in relation to a divorce application) and provides that in making its orders, the court shall endeavour to ensure that such provision exists or will be made for each spouse concerned and for any dependent member of the family concerned as is proper having regard all the circumstances of the case. There used to be a notion that one-third would go to a dependant spouse, however; such method has been widely criticised and will not be followed in an Irish court.Denham J. said at pp. 384 to 385 in the judgment ofT. v. T.[2002] 3 I.R. 334:

“The concept of one-third as a check on fairness may well be useful in some cases; however, it may have no application in many cases. It may not be applicable to a family with inadequate assets. It may not be relevant to a family of adequate means if, for example, such a sum could only be achieved by a sale of assets which would destroy a business, or the future income of a party or parties, or if it related to property brought solely by one party to the marriage, or any other relevant circumstance.”

And what is said to be proper provision in one case could be highly inadequate in another.Denham J. said at p. 381 of the judgment:

“The relevance and weight of each of the factors will depend on the circumstances of each case.”

The case of K v K [2001] 3IR 371 concerned an appeal to the Supreme Court against a decision of Lavin J. where he had directed that the applicant was entitled half of the respondent’s income, together with a lump sum of £1.5 million, which represented approximately half of the respondent’s assets.  The Supreme Court remitted the case back to the High Court as the trial judge had not given reasons for the manner in which he had exercised his discretion under section 20 of the 1996 Act (the equivalent provision under the divorce act). It emphasises the importance of considering the relevant section and the considerations thereunder of what constitutes ‘proper provision’.

Section 16 of the Family Law Act 1995 sets out 12 factors to which the Court is obliged to pay particular regard, namely,

Section 16(2)(a) the income, earning capacity, property and other financial resource which each of the spouses concerned 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 (whether in the case of the remarriage of the spouse or otherwise),

( c ) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another, as the case may be,

( d ) the age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another,

( e ) any physical or mental disability of either of the spouses,

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

( g ) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse 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 of the spouses 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 of the case be unjust to disregard it,

(j) The accommodation needs of either of the spouses,

(k) The value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of judicial separation concerned, that spouse will forfeit the opportunity or possibility of acquiring,

(l) The rights of any person other than the spouses but including a person to whom either spouse is remarried.

There are a number of important judgments which effectively conclude one important point: every case is different and will depend on the facts and circumstances of the parties.

Tax implications – it should be noted that the Courts often utilise the mechanism of a lump sum order so as to provide proper provision in lump sum cases. An important consideration for the Court to consider when making such an Order is the tax implications of the said Order.

Conclusion – it is clear that the Courts view every family law case differently in Ireland and there is no ‘hard and set rules’ in relation to what constitutes proper provision in any one case. Even in the very limited facts which exist in this case, it may be difficult to fit the circumstances into one of the grounds for a Judicial Separation. Given the length of the marriage and the ages of the parties and taking into account that John’s wife, it seems, has never worked outside of the family home, it is likely that a Court would award the wife an award equal to between a third and a half of the overall value of the case. There would likely be maintenance, whether it be in the form of a lump sum payment or monthly maintenance payments or both. There would likely be property adjustment orders in relation to the family home and any other properties and also a pension adjustment order in that John’s wife would receive some of the benefits under John’s pension including, but not restricted to, any spouses benefit it they exist.

LegalEagleStar   Tuesday,  25th  January,  2011

Written by LegalEagleStar

January 25, 2011 at 2:57 pm

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