/ Published in Separation, Divorce & Relationship Issues

Proper Provision

Proper Provision

In dealing with the breakdown of a marriage, the courts will look to make what is called “proper provision” for all parties involved. The courts’ main aim in family law matters is to ensure the outcome is fair and just. This means the Court will ensure an outcome is within the most reasonable financial expectation of the parties as to their standard of living for the future.

So, who gets what?

When going through a divorce, rational discussions about the division of assets can be complicated. If the divorcing couple cannot decide between themselves how best to split their assets, their solicitors can guide them through a mediation process. Of course, if that is not successful, the courts will step in as final arbitrators and may take the decision away from them.

This is what a Court will consider if it comes to a hearing:

The “proper provision” requirement may cause difficulties in some cases because it is interpreted and defined by Judges on a case-by-case basis.

Here are some of the criteria a Judge looks at when considering what is the proper provision under your circumstances:

  1. Income, earning capacity and other financial resources;
  2. Financial needs and obligations;
  3. Age, duration of the marriage and length of time living together;
  4. Standard of living;
  5. Any relevant special needs;
  6. Contributions made to the welfare of the family;
  7. Accommodation needs;

Among other factors, these criteria are looked at in arriving at the asset or financial split. The Court’s aim is fairness and justice.

CAN WE MAKE OUR OWN AGREEMENT?

The Courts have supported the notion that couples can agree on how they wish to order their affairs. Any such agreement is considered, should either of the parties later want to revisit the matter. This is particularly important if the couple has specified that the agreement should be final.

The Courts have supported the notion that couples can agree on how they wish to order their affairs. Any such agreement is considered, should either of the parties later want to revisit the matter. This is particularly important if the couple has specified that the agreement should be final.

The courts don’t usually get involved in altering the situation unless such an agreement does not “properly provide” for one party or if the circumstances of one or the other involved have changed dramatically since the agreement was entered into.

Similarly, the courts have indicated that any windfall or wealth one party gets after the couple’s relationship has ended or assets inherited by one party should not automatically be open to a claim by the other. Any such assets, however, may be considered relevant in ensuring that “proper provision” is made.

Can we have a clean break?

A general principle of law supports any effort to arrive at closure whenever possible. This is generally true if there are enough resources to provide for each party (and any dependents).

However, there is no explicit provision for a “clean break” in legislation, and there have been some limited cases where any division of assets was re-visited and changed.

WHAT IF OUR CIRCUMSTANCES CHANGE FINANCIALLY AFTER THE AGREEMENT IS MADE?

What, then, if an agreement or Court order is made and one or the other of the parties finds themselves in a situation where their financial position has now changed?  – for example, if the assets were divided and were to significantly reduce in value, or if one party were to earn much less.

If a party is looking to revisit their settlement, they will have to show the Court that:

  1. New events have taken place since the previous Court order was made;
  2. These recent events happened relatively soon after the last order;
  3. They have not delayed in making their application to alter the old terms;
  4. No other party interested in any of the assets involved will be negatively affected if the order changes.

While each case is taken on its facts, the courts have generally taken the view that unless the change makes the previous terms impossible to comply with, they will be very reluctant to alter what was intended to be the final settlement.

For further advice, please contact gilliano@lynchsolicitors.ie or  reception@lynchsolicitors.ie or telephone 052-6124344

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