Divorce Solicitors Cork Dublin – Proper provision in the event of a marital breakdown
It is important that you are aware of your legal rights in the event of marital or relationship breakdown. When a marriage breaks down, there are a number of legal options that can be considered such as separation agreements, judicial separation, divorce, custody and access to children and maintenance. Persons who are not married but qualify as cohabitants now also have legal rights under The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Divorce Solicitors Cork Dublin.
The law in relation to family law and divorce in Ireland is predominantly contained in the Judicial Separation and Family Law Reform Act 1989 , the Family Law Act, 1995 and the Family Law (Divorce) Act 1996. A Separation Agreement is where both parties reach a formal agreement in relation to matters such as maintenance, access to children, the family home, farm and division of the assets without issuing court proceedings.
Where spouses cannot agree the terms of the separation, or where only one spouse seeks a separation, an application for a Decree of Judicial Separation can be made to court. A Decree of Divorce dissolves a marriage and allows both parties to remarry but in order to qualify for this at the date of the institution of the proceedings, the spouses must have lived for four years during the previous five years. Judicial Separation only requires one year living apart.
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One of the key issues the parties have to consider when entering into a Separation or Divorce is the division of assets. The most common asset normally is the Family Home. The ‘family home’ is defined under the Family Home Protection Act, 1976 as “primarily, a dwelling in which a married couple ordinarily reside” and the family home cannot be sold without the consent of both spouses. Even if the family home is in the name of one spouse, the consent of the non-owning spouse is still required for a sale.
The Court has the power to transfer or sell assets under a Judicial Separation or Divorce. This is known as a Property Adjustment Order. The court when making such an order must ensure that proper provision is made for both parties and children. In order for “proper provision” to be made for a spouse and children, the only option may be that the assets are sold in order to raise capital for the purchase of an alternative home for the spouse and children.
Divorce Solicitors Cork Dublin
Proper provision will vary from case to case and the court will take into consideration a number of factors such as both parties’ financial means and the needs of the children. The children’s needs will only be considered whilst they are classified as a dependent. A dependent child is one who is under the age of 18 or 23 if in full time education.
The court will normally consider all assets of the parties when making proper provision for the parties by making a property adjustment order. Before considering to make an order for sale or division of assets, a court would have to be aware of a number of factors such as:
- Succession rights may need to be considered and whether the dependent children are interested in assets being transferred to them.
- Have both parties contributed to acquiring the assets such as contributing to mortgage payments.
- The value of the asset is usually significant and sometimes an order for division of an asset such as a family home or land may be unfeasible.
- Is there a family business with assets attached to it and have both parties contributed to the running of this and are their incomes primarily dependent on this.
In the event of a marital breakdown, it is advisable you take legal advice early on from a solicitor given the stakes are quite high and they want to ensure that the assets are protected and both parties and the children are adequately provided for. Divorce Solicitors Cork Dublin.