I am a professional woman in my mid-forties and was married since I was in my late twenties. We have two children. My relationship with my husband has deteriorated in the last few years. I tried to work on our relationship but he didn’t seem to be interested. I accept that I should have tried harder but instead I began a relationship with a man I met online. He has found out about the relationship and is understandably very angry. We have decided that our marriage is over but he refuses to engage in mediation. He says that because my parents are wealthy that I should buy him out of our home (there is a lot of equity in the family home). I feel the environment has become toxic for our children in the house and my husband refuses to leave. I feel guilty and even though it would break my heart, I am considering leaving the family home until I have finished my Divorce.
This lady was quite composed when she initially met with the solicitor but it was not long before she revealed the level of stress she was under.
First of all, we explained that the affair, while certainly not helpful, was ultimately not going to be a major factor in the custody of the children and the distribution of assets in the Divorce. We explained that it was a no-fault divorce system in Ireland. We explained that barring some serious domestic abuse situations, behaviour was not really a factor to be taken into account by a judge in deciding the distribution of the marital assets. This seemed to calm her no end as she explained that she had visions of being castigated by solicitors and judges over her new relationship.
We explained that we cannot force someone into mediation and that if he refuses to engage in mediation, then court proceedings will have to begin. She explained that no normal marital relationship had existed between them for the last two years so there was no bar to starting Divorce proceedings. She asked whether there was some mechanism to force her husband to leave the house. We explained that as they were joint owners of the house, they were both entitled to live there. We explained that had there been violence in the home or threats or coercive control, she could apply for an interim barring order in the District Court. We advised that no such situation existed in this case so she could not force him to leave.
She asked whether she should leave the family home for the sake of the children. We explained that this was a matter for her but we did advise that there is a good reason why most solicitors advise not to leave the family home. The first is that the courts do not like to upset the status quo as a general rule and that if you move out and display that you can afford to pay rent and accommodate your children in a separate home, then some courts may just continue that situation and leave the other spouse in the family home until the children have completed full-time education.
We also informed her that in our practical experience, once one spouse has left that there is no impetus on the other spouse to engage promptly with the legal process as they pretty much have everything they want at this stage. This can have the effect of making the other spouse delay proceedings for much longer and be much slower to agree on a settlement until the very last moment.
The client also queried her husband’s position that she may receive an inheritance in the future from her parents as her parents were quite wealthy. We advised here that this was indeed a grey area. Legally speaking any future assets were not a factor to be taken into account in assessing the division of the marital assets. This is for the obvious reason that her parents may decide to leave their property to the cats and dogs home.
However, if she did inherit money while the proceedings were in being, then it would logically be part of the marital assets as the court is concerned about whether an adequate provision is made for both spouses into the future. Logically, if she had an extra million euros in the bank, she would be in a better position to provide for herself.
We advised that her ideal situation would be that she engage a solicitor and commence proceedings and stay in the family home. One would hope that he sees sense and wishes for the sake of his children and himself that this would be better dealt with quickly and amicably and engages a solicitor. This would hopefully have the effect that his solicitor would provide much the same advice as she had received and they would take the view that a settlement would be advisable. We provided her with a statement of means to complete and compute all her assets, liabilities, and incoming and outgoings. We also advised her to go to a mortgage broker to assess her ability to buy out the family home or purchase a new home.
This lady did engage us to institute proceedings and stay in the family home.
Unfortunately, her costs were much higher than originally anticipated because her husband refused to engage with the process initially. He refused to engage a solicitor when we wrote to him or when we served proceedings upon him. Our Lady was obliged to pay to go to court to ask a judge to make him engage with the process. This thankfully did have the desired effect as the husband engaged a solicitor and while the proceedings were slow, ultimately a settlement was reached prior to the hearing of the case.
The lady who was in a good job was able to buy her husband out of the family home and her husband moved on. There was an agreement made as to pensions and there was some give and take on both sides. She was relieved that while her affair was mentioned in the pleadings of the case, it was not made the focus point of the case. She was glad looking to the future that his succession rights to her property were now extinguished so if indeed she did receive money into the future, she could leave this property to her children if she so wished without him having a claim over it.
Upon completion, she said that while she found it hard to understand why the journey took so long, she felt relieved that she could now move on with her life.
