Even where you may have terminated your marriage by separation agreement, judicial separation or divorce you are still obliged by law to maintain the other spouse. This obligation only ends when the other spouse dies or remarries.
Maintenance orders
The Family Law Act, 1995 provides for 3 types of maintenance order:
I. A periodical payments order
II. A secured periodical payments order
III. A lump sum payments order.
If you remarry and you are the beneficiary of a maintenance order, any maintenance order will cease to have effect as far as you are concerned but not as far as dependent children are concerned.
The Courts have the power to make an attachment of payments order but the collection of maintenance is the responsibility of the recipient spouse.
In deciding what maintenance should be paid by spouses the Court will consider a statement of means supplied by both parties which must be sworn on affidavit and ultimately will be guided by the principle of attempting to make proper provision for each spouse and any dependent members of the family. It does this by looking at the financial need of the recipient spouse and the ability of the paying spouse to pay.
A lump sum payments order can be ordered by the court which considers it unlikely that regular maintenance payments will be made-but the payment of a lump sum will not prevent the recipient spouse from applying for further maintenance as there is no “clean break” in Irish divorce law.
There is no formula used by the Courts when it comes to deciding how much maintenance to award and each case will be judged on it’s specific circumstances.
Pension adjustment orders
The Family Law Act, 1995 allows the discharge or variation of maintenance orders previously made if there is a change in circumstances. The act also allows the making of a pension adjustment order which aims to allow the distribution of pension benefits by disregarding the terms of the pension scheme and either party can apply for this order. However if you remarry you are prevented from applying for such an order.
It is important to note that any attempt by a separating couple to divide the benefits of a pension scheme between them will not work and will have no effect. Regardless of what an individual member of a pension scheme wants, the trustees of the scheme are obliged to be bound by the terms of the scheme.
If the parties come to agreement in relation to the pension then they will need an order of Court to effect that agreement and this can only be done after the granting of a decree of divorce or judicial separation by way of an order of Court. If separating couples execute a deed of separation between themselves then they are depriving the Court of making an order in respect of the pension.
The recommended procedure would be to agree the terms of agreement between spouses, issue proceedings under the Judicial Separation and Family Law Reform Act, 1989 and an application to have the settlement terms made an order of Court and the relevant pension adjustment order made on consent.
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