The Divorce Mantra – “Proper Provision in all the Circumstances”

This is something that I repeat many times when I am speaking with clients – to my mind it is the central consideration for the courts when granting a Decree of Divorce.

Legislation states that ‘the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned’. (S.20 The Divorce Act, 1996)

There are a number of factors that the court shall consider in this regard and they are as follows;-

1. The income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future;
2. The financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of remarriage or otherwise);
3. 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, as the case may be;
4. 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;
5. Any physical or mental disability of either of the spouses;
6. The contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including 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;
7. The effect on the earning capacity of each of the spouses of the marital responsibility assumed by each 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 that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family;
8. Any income benefits to which either spouse is entitled by or under statute;
9. 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 be unjust to disregard it;
10. The accommodation needs of either of the spouses;
11. The value to each of the spouse of any benefits (for example a benefit under a pension scheme) which by reason of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring;
12. The rights of any person other than the spouse but including a person to whom either spouse is remarried. ( S.20 (2) The Divorce Act, 1996 ).

Since the enactment of the Divorce Act, 1996, the Irish courts have built up a body of case law and precedent which shows how the courts interpret or apply the criteria as above.

For discussion purposes I tend to break it down into 3 main arms or components in the context of the particular circumstances and needs of all of the members a particular family;

• Income
• Accommodation
• Security

I think that is a pretty solid starting point when considering proper provision in all the circumstances.

Should you have any further questions do not hesitate to contact Ken Breen of this office at ken.breen@kodlyons.ie.