In deciding separation/relationship breakdown issues, there is an obligation upon every court to ensure that there is an “equitable division” of all assets between the parties. Unfortunately people can interpret this as meaning “equal division,” and this is not always the case….. Equitable does not mean equal.
It is reasonable to assume that if you are a couple who are both independent and capable of earning in your own right, marital assets should be divided equally between you both. However a number of factors will influence the ultimate decision and can result in what may be an unequal, butis in fact an equitable division. These factors include the following:
- Are there dependent children? If there are young school going children then there is a pressing priority to ensure that they have accommodation. This may mean that a greater share of a property/family home is given to the parent who has primary care of the children. Remember that children are considered to be dependent up to age 23 if they are still in full-time education.
- Is either one of the couple themselves dependent? If one partner has particular health needs or is unable to work this too can influence asset division, and may also result in additional orders for financial support/maintenance.
- One party may have contributed substantially more than the other to the marital assets, and if all else is equal, this can be taken into account by the court.
- Is there a pre-nuptial agreement? Whilst there is no legal recognition of pre-nuptial agreements under Irish Law, the court can still review the contents of the agreement, and consider the couple’s stated intention in the beginning. This will sometimes influence the decision made.
To sum up, the outcome will depend on the individual history and background of your particular relationship and family, and the ability to present these in court. As a result, your expectations may not be fully met by the court, so it is always important to obtain good advice prior to embarking on legal proceedings.
Deirdre Burke has 15 years’ experience working in family law, is a trained Family Law Mediator, and a member of the Family Lawyers Association, the Association of Collaborative Practitioners (Irish & International), the East Coast Collaborative Lawyers Group, and a member of South East Collaborative Family Law Solicitors. You can call her on 0402 24370 or 01 2148662 or email: info@dmburke.ie