As a family law solicitor specializing in divorce, I deal with a lot of clients and inquiries. It’s surprising how many people think dividing assets in a divorce is simple. Let me clarify—it’s not. In my experience, it can often be quite complex. If there were a straightforward, one-size-fits-all formula, we’d be out of work.
Divorce and Judicial Separation were only introduced in Ireland in 1995/1996, so there isn’t the centuries-old case law that exists in other areas like criminal or personal injury law. Divorce was a highly emotive and divisive topic when it was first introduced here, and it’s treated very seriously by the courts. Unlike some other countries, Ireland does not have a flippant attitude towards marriage and divorce. The importance of the family is enshrined in our written constitution, so in every divorce, the courts must ensure “proper provision” is made for both parties moving forward.
This concept is complex and varies with each case. The courts emphasize fairness and practicality, not fault or punishment. I often remind clients that lawyers aren’t interested in why the marriage broke down. It’s not that important to the legal process. Let’s address some common misconceptions and questions we receive daily.
The Judge’s Role in Divorce: Fairness, Not Punishment
When dividing a couple’s assets, the judge’s primary role is fairness—not punishing the errant spouse. I’ve written about this before in my article, “I Wasn’t the Perfect Spouse, Should I Worry About the Judge Punishing Me?”
The main point is that, in a divorce involving children, the judge’s primary consideration is the best interests of the children. After that, they must look at the financial pot available to both spouses and the children and decide how to make proper provision for all parties. You’ll notice that punishing anyone for bad behavior isn’t part of this process.
So, in practical terms, if one party cheats and effectively ends the marriage, their behavior won’t impact how assets like the house or pensions are divided. This can be a hard pill to swallow for the “wronged” spouse, but the legislation is explicit on this.
During negotiations between lawyers, the focus will be on assessing the family’s financial assets (including questions like, “Do inheritances form part of the pot?”) and figuring out practical solutions (e.g., “Who can buy the other out of the house?”) to reach a settlement that both parties can live with. It’s always better to have an agreement you can tolerate than to have a court order forced on you that’s difficult to accept.
What Is a Wife Entitled to in an Irish Divorce?
One of the most frequently asked questions is, “What is a wife entitled to in a divorce in Ireland?” The law doesn’t differentiate between men and women, and in some homes, women are the primary earners. But I’ll answer the question as it’s the most common inquiry we get.
There are many different scenarios. For instance, if the wife has dependent children, resides in the family home, and wants the husband to move out but cannot afford to buy him out of his share of the home, things can get tricky.
- In nearly every case, we advise clients to consult a financial planner or mortgage broker to assess how much money they can raise for a mortgage. This is crucial because the courts cannot order banks to give you a mortgage.
- If the person can’t raise a mortgage, the court has two main options:
- Grant the wife and children the right to live in the family home until the youngest child turns 23, at which point the house is sold and the proceeds are divided.
- If there’s significant equity in the house (say, €800,000), the court might order the house to be sold sooner, and two lesser homes purchased, as it wouldn’t be fair for the wife to live in a valuable property while the husband spends large sums on rent nearby.
These are not simple questions to answer, as they depend heavily on the specific circumstances of each case.
What Am I Entitled to if I Separate From My Husband?
Another common question we hear is, “What am I entitled to if I separate from my husband?” Or, “My husband wants a divorce—what are my rights?”
First and foremost, if you’re asking this question, don’t try to mediate an agreement on your own. You should get legal advice from a solicitor because there’s a lot to consider.
- You’re entitled to stay in your family home, even if you’re not on the title deeds. Because you’re married, you have acquired certain rights over the family home by residing there.
- While married, you’re entitled to a share of your spouse’s estate upon death—half if there are no children, or one-third if there are.
All assets, including pensions, land, and bank accounts, are part of what’s called the “family pot.” Once everything is ascertained, the discussion focuses on what should and shouldn’t be included in that pot. For example, should his inheritance be included? Should his business be included? These answers depend on your involvement in those areas.
Common Misconceptions About Irish Divorce Entitlements
There are several misconceptions people have about divorce in Ireland, such as:
- The judge will punish the spouse at fault. As mentioned earlier, the courts focus on fairness, not punishment.
- One spouse will have to pay the other spouse’s exorbitant legal costs. This almost never happens—each party bears their own costs.
- I stayed at home, so I’m entitled to very little. Non-financial contributions, like caring for children, are given equal weight to financial ones.
- Marrying into money is like winning the lottery. Irish divorce law doesn’t work that way. It’s much more nuanced than in places like California, where community property laws divide everything 50/50.
- Your dirty laundry will be aired in public. Divorce cases in Ireland are held in camera, meaning only your lawyers and court staff are present—no public audience.
- One spouse can force the other out of the family home. This is generally not true unless there is violence that meets the threshold for a barring order.
Conclusion
Every divorce is unique, with its own set of circumstances. If there are assets involved, my advice is to seek legal guidance. Be prepared to provide a full picture of the marriage’s finances and engage proactively with your solicitor. Court procedures can be slow, but you can avoid adding to delays by promptly providing any required documents like bank statements or pension information.
Hopefully, this article has helped clear up some misconceptions and given you a clearer idea of your general entitlements in an Irish divorce.
If you would like to learn more about your entitlements during your divorce – you can contact your local divorce solicitors in Dublin.
