Marital Property is the property owned by either spouse going into divorce proceedings. It can include bank accounts, real property, jewelry, or anything which either spouse holds which is of material value. The property does not have to be in joint names. Essentially the property of both spouses is quantified by the judge as a total. The judge then divides this total property on the basis that proper provision is made for both spouses and dependents of the marriage going into the future.
This property forms part of the family pool of assets which is to be divided upon a divorce being granted. Different considerations can be given to different circumstances. If for instance one person owned a business worth 10 million and then married and the marriage lasted one year, it would not be viable to argue that the non-owning spouse should acquire 50% of the company. If however one person had a business worth 10 million and a couple had children and one spouse looked after the children and gave up his/her career to allow their spouse the time to start the business and the marriage lasted 30 years, then this person would have a more viable argument to acquire 50% of the business
When your divorce case finishes, you will either have agreed to a settlement with your spouse or a judge will decide to divide the assets of the marriage. There can be orders made regarding one spouse making a payment to the other or a pension being divided or a maintenance order being granted. It can also make an order regarding the property such as the Family Home. The Property adjustment order is simply the order that is made by the judge such as the transfer of one spouse’s half share to the other spouse.
Not to be too technical about it, but one must ask for it. Like everything in the law, it is based on statute (ie. the Law brought in by our elected representative). In this case, the law is the Divorce Act and it empowers a circuit court judge to make an order pursuant to this act to make an order transferring one person’s share to another. When you start your divorce process in Ireland, your family law solicitor or yourself must ask (or plead) in the originating document (civil bill) for what you want the judge to do and under what provision of what act. An Example is “ An Order pursuant to Section 15(1)(b) of the 1996 Act and Section 36 of the 1995 Act and/or Section 31 of the Land and Conveyancing Reform Act, 2009, determining all issues in relation to the title to and/or possession of any property the subject if the within proceedings, or property to which the Respondent is entitled, or such share or portion thereof as to this Honourable Court shall deem proper”.
The entire property of the marriage is divided upon the basis that proper provision is made for both spouses and dependents of the marriage going into the future. It requires an entire article to discuss this ( see here) but the first step is for the court to be given a completely accurate picture of the couple’s assets. This is why the first step is for each party to swear an affidavit of means (and welfare) of children. This is where all the assets and income and outgoings are stated by each spouse. This is a serious document that is sworn before a commissioner for oaths. Being less than honest in this document is akin to committing perjury in court. The second stage is that these documents are “vouched” by each spouse proving all the assets and income and outgoings. For example, if there is a bank account, provide a statement, if there is income from a job, provide the payslips, and so on and so forth.
This vouching documentation is pored over and analysed by each respective spouse’s divorce solicitor. When all questions have been answered (which may require going to court and having a judge order disclosure of documents) the judge has a good overall picture of the finances of the couple and tries to fairly divide the assets so that both parties can be properly provided for. Spousal behaviour in the marriage is rarely considered. If you can imagine being in a judge’s shoes you can see how you may do it, (ie. I will let him keep his full pension whereas I will let her keep the family home).
To learn more, you can read citizens information here.
Property (ie. a house or apartment) is split by using the divorce acts. This act allows a judge to make an order called a property adjustment order. This is simply the judge ordering the sale of the property or a transfer of a person’s rights of property from one spouse to another.
The judge can also decide to give a spouse a right to stay in the property for a period of time – e.g until the dependent children cease to be dependent (18 or 23 if in full-time education). The judge can state that when the children reach this age that the property is to be sold and the proceeds divided in certain percentages. A lot of the considerations around the division of property are based on the ability of the separating spouse to raise a mortgage as ultimately the difficulty is that one home must now become two (should you wish to read more see here)
The family home is just one asset in the pool of assets to be divided by the court when a divorce decree is granted. It is admittedly however usually the most valuable asset of most marriages. Different considerations apply where there are children in the marriage. As a rule of thumb, it would be rare that the court would order the sale of the family home where the children are residing in the family home. Normally the wife (not always) would be allowed to stay in the family home until the children reach 18 (or 23 if in full-time education). The proceeds of the ultimate sale of the house are dependent on what other assets exist in the marriage and ultimately the test will be that both spouses have to be properly provided for going into the future ie will they both have a house to live in?
I have encountered many different attempts by spouses to protect or hide property from being the subject of divorce proceedings. In the USA we have all seen that pre-nuptial agreements are very in vogue, especially in the business community. The logic is that the data suggests in the USA that divorce rates are very – half the time marriages end in Divorce, and that divorces can have massive negative effects on a business (ie they may have to be sold which has repercussions for the other partners in a business).
So, in order to protect the spouse’s (and business partner’s) business interests, an agreement is made with a prospective spouse as to how the assets of the marriage are to be divided should the marriage be dissolved.
In Ireland, these pre-nuptial agreements are not given the same status as in the USA. They are just as a guide to the court as to the couple’s intentions but ultimately the court must be guided by the legislation which states that they must consider if proper provision is made for both spouses going into the future.
In any event, in Ireland, it seems that marriage is not generally viewed in the same way as in the USA and that contracting for your future divorce is not a great way to begin your lifelong commitment to one another. All other attempts to hide assets from being the subject of divorce proceedings are simply not a good idea. Remember that as well as the vouching documentation that your spouse’s divorce solicitor will require, there is also the option of your spouse engaging a forensic accountant to really parse through your finances which will most likely reveal any potential cover-ups. These revelations will not put you in a good position before any deciding judge.
The Family Practice was set up with a simple mission. To help people through Divorces where assets are involved. Established by experts in the field, we understand how overwhelming divorce cases can be, so our aim is act as your sword and shield, guiding you through the whole process, while also keeping costs down. But first it’s important to know why you need a solicitor when there are assets in the first place.
If you have a property, a pension or other assets and are divorcing, you need a solicitor. The reason is simple. People think that divorces are all about the family home, but in fact other assets, for example a pension, can be even more valuable. The courts know this and want to ensure equity, so any agreement must be court approved. We are experts in this process. Securing the best future for you is our priority.
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