Here in Ireland both the Circuit Court and High Court have jurisdiction to deal with Judicial Separation and Divorce proceedings. While the Circuit Court has a central role in the majority of cases, cases involving larger assets or income are properly heard in the High Court. The High Court also hears appeals from decisions of the Circuit Court. All such cases are heard ‘in camera’, which brings an important element of privacy to the proceedings.
The main issues which arise to be resolved in High Court matrimonial proceedings are generally:
- Custody and access
- Maintenance and support payments for spouse and/or dependent children
- Safeguards being implemented to protect maintenance and support payments
- Ownership of the family home or its sale, along with any other property
- Pension benefits
- Issues of domestic violence
The decision to initiate proceedings in the High Court will be influenced by a number of factors including the value of any marital assets including income of one or both spouses, the jurisdictional competence of the court, the types of Orders sought, and the legal complexity of the matter.
Prior to the granting of a decree of judicial separation or divorce the Courts are required to make ‘proper provision’, such as it can from the marital assets. Certain factors are taken into account by the Judge in determining what constitutes proper provision in each case including:
- The income, earning capacity, property and other financial resources which each of the Spouses has or is likely to have in the foreseeable future
- The financial needs, obligations and responsibilities which each of the Spouses has or is likely to have in the foreseeable future
- The standard of living enjoyed by the family concerned before the proceedings were instituted or before the Spouses commenced to live apart from one another
- The age of each of the Spouses, the duration of their marriage and the length of time during which the Spouses lived with one another
- The contributions which each of the Spouses has made or is likely in the foreseeable future to make to the welfare of the family. This includes any contribution made by each of them to the income, earning capacity, property and financial resources of the other Spouse and any contribution made by either of them by looking after the home or caring for the family
- The effect on earning capacity of each of the Spouses of marital responsibilities assumed by each of them during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a Spouse is impaired by reason of having relinquished or foregone the opportunity of remunerative activity in order to look after the home ,or care for the family
- Any income or benefits to which either of the Spouses is entitled
- The conduct of each of the Spouses, if that conduct is such that in the opinion of the Court it would in all the circumstances of the case be unjust to disregard it
- The accommodation needs of either of the Spouses
- Any physical or mental disability of either of the Spouses
- The value to each of the Spouses of any benefit which, by reason of the Judicial Separation or Decree of Divorce, that Spouse will forfeit the opportunity or possibility of acquiring (for example, a benefit under a pension scheme)
- The rights of any person other than the Spouses, including a person to whom either Spouse is now married.
Given that High Court family law proceedings generally involve so-called ‘high value’ cases, the importance of full financial disclosure cannot be overstated.
Specific provision is made in the Rules of the Superior Courts for each party to swear and exchange sworn Affidavits of Means, detailing their assets, liabilities, income, expenditure and pensions (if any). These Affidavits must then be vouched through provision of supporting documentation which will usually include bank statements, P60s and payslips, pension certificates and property valuations.
Where a spouse is slow in providing or refuses to provide the necessary documentation or details of their means, the Court, on application by the other spouse, has the power to Order discovery of that documentation.
Disclosure can take time to be made and then examined, and may require engaging the services of a forensic accountant, in order to ensure that there are no assets being hidden by the spouse. Where a spouse does not make any or adequate disclosure, it is not possible to properly advise on proposals made towards the settlement of matters, or indeed on the appropriate division of assets.
Furthermore, any agreement or settlement of Court proceedings, entered into on the basis of incomplete disclosure is unlikely to be upheld by a Court, and the courts will usually not allow a case to be heard and determined without full disclosure. In the most egregious of cases, the threat of committal for contempt of court is used to ensure compliance.
Orders in Judicial Separation and Divorce Proceedings
Legislation provides that, once a Decree of Judicial Separation or Divorce has been granted, the Court can then make Orders in relation to Custody, Access, Maintenance, lump sum and secured lump sum payments, transfers of property between Spouses, transfers of pension benefits between Spouses, assignments of an interest in life policies, extinguishing of inheritance rights and a conferral of the right on one spouse to reside in a property for his/her lifetime to the exclusion of the other Spouse.
The Court can also make Barring Orders and Safety Orders if one Spouse and/or the children of the parties are encountering domestic violence. It is also possible for the Court to make Interim Orders, which are Orders made whilst the proceedings are ongoing and have not been fully heard in respect of Protection Orders, Interim Barring Orders, maintenance, lump sums, custody and access.
A Court can also make an Order directing that a report (known as a Section 47 Report) be produced by a suitably qualified professional, such as a psychologist or psychiatrist, on any question affecting the welfare of a dependent child or children, such as Custody and Access.
Even in a situation where there is a full and final settlement agreement between the spouses, the courts can and will vary the orders depending on the case. As in most things, all marriages and settlements are different and therefore each case is weighed on its own merits.
The normal rule in litigation is that costs ‘follow the event’, by which is meant the party who is unsuccessful in the case or the application must pay the costs of the other party. The rule is not commonly applied in family law cases, though it can be where there is misconduct on the part of one spouse, or a refusal to comply with Orders.
In High Court cases in particular, the complexity of the process, the consequent workload, and the advisability of retaining the services of an experienced barrister, can lead to larger costs. Nonetheless, given the importance of the matters at hand and the consequences of any Orders made for a party’s life and standard of living into the future, it is money that is well spent.
For further information or to make an appointment, please call us on 01 832 7899 or email info(at)barronmorris.com.
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