Dividing Assets In Divorce: Does Equitable Mean Equal?

In deciding on relationship breakdown issues, courts must rule on dividing assets on divorce or separation. There is an obligation upon every court to ensure that there is an “equitable division” of all assets between the parties.

People can misinterpret this as meaning “equal division,” and this is not always the case. In addition, when considering a Divorce, there is an obligation on the Judge to ensure that “proper provision” is made between the parties. This must take account of all dependents such as spouses and children. Unfortunately, this is very subjective and the outcome in each case depends on the particular circumstances of the family. There is no hard and fast rule, and this can result in an unequal division of assets. Equitable does not always mean equal.

Key Factors When Dividing Assets On Divorce

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. This can result in what may be an unequal, but is in fact an equitable division. These factors include the following:

1. 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.
2. 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. It may also result in additional orders for financial support or maintenance.
3. 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.
4. Is there a pre-nuptial agreement? There is no legal recognition of pre-nuptial agreements under Irish Law. However, the court can still review the contents of a pre-nuptial agreement and consider the couple’s stated intention in the beginning. This will sometimes influence the decision made.

Other Factors Affecting Division of Assets in Divorce Rulings

Many other factors also exist in addition to the above. To sum up, the outcome will depend on the individual history and background of your particular relationship and family. But it also depends on 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.

If you need advice or support on any of the issues raised above, please call Alan Finnerty on 01 637 6200. Or you can email him at alan.finnerty@orpenfranks.ie

 

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.