Proper provision in divorce in Ireland-how does a Court decide?

When a court is going to grant a divorce in Ireland a key factor which the judge must consider is whether “proper provision” is being made for the spouses and any dependent children.

This obligation is set out in the Family Law (Divorce) Act 1996 at section 20(1):

20.—(1) In deciding whether to make an order under section 12 , 13 , 14 , 15 (1) (a), 16, 17, 18 or 22 and in determining the provisions of such an order, the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned.

The factors to be considered in arriving at a decision are set out in section 20(2) as follows:

(2) Without prejudice to the generality of subsection (1), in deciding whether to make such an order as aforesaid and in determining the provisions of such an order, 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 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 divorce 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.

If there is a separation agreement between the parties the court is obliged to “have regard to the terms of any separation agreement which has been entered into between the parties and is still in force” (Section 20(3) Family Law (Divorce) Act, 1996.

This means a court will take a separation agreement into account but will still consider the fairness of the agreement and will amend it, if necessary, to ensure “proper provision”.

It is important to remember that a court has a wide degree of discretion and can attribute different weightings to the factors outlined above in the particular circumstances of the case.

Each case is unique and will be determined on its own facts and circumstances.

G v G, Supreme Court, 2011

In G v G [2011] IESC 40 the Supreme Court looked at some important issues surrounding separation and divorce including

  • Full and final settlement in separation agreements
  • What happens when one of the parties acquires new wealth after separation
  • The concept of a “clean break” in Irish law in divorces
  • Assets inherited after a separation agreement
  • Exceptional changes after separation

This case is authority for the proposition that whilst there is no “clean break” in Irish family law it is a legitimate aspiration of the parties when entering into a separation agreement and/or a divorce.

Nevertheless, a settlement with a “full and final settlement” clause can only be varied in exceptional circumstances.

Any application for further provision should only be permitted if there is substantial change to justify the application.

G v G also held that “assets which are inherited will not be treated as assets obtained by both parties in a marriage. The distinction in the event of separation or divorce will all depend on circumstances”.

G v G is a case which rules out further “second bites” at the cherry unless there are significant changes in circumstances and further financial relief orders are difficult to obtain as a consequence.

Read the full decision in G v G.