WHAT IS PROPER PROVISION?
When a couple separate or divorce the most frequently asked question posed to a family law lawyer, is what am I entitled to? The simple answer is a settlement be it by agreement or imposed by Court, that achieves proper provision.
Proper provision is achieved by a Judge weighing up a list of principles and reaching a financial split based on this criterion. The aim is to ensure fairness. As no two marriages are the same and no two marriage breakdowns are the same, no two settlements are the same. The list of criteria to be considered are set out in both the Family Law Act 1995, and the Family Law (Divorce) Act 1996.
These criteria include:
- 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
- the financial needs, obligations and responsibilities which each of the spouses had or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise)
- the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses separated, as the case may be
- the age of each of the spouses and the length of time during which the spouses lived together
- the physical or mental disability 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 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
- any income or benefits to which either spouse is entitled by or under statute
- 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
- the rights of any other person other than the spouses but including a person to whom either spouse is married
A Court will try to ensure that both parties’ ( and the children’s’) accommodation needs are met, that there is sufficient monies for the maintenance of the parties and the children, that both parties if possible have access to a pension, that there is provision for education including Third Level Education, particularly if the children are near or attending Third Level education.
A settlement can be achieved in either of two ways :
- By the parties agreeing between themselves as to what each will take from the assets available, this is known as a separation agreement, consent settlement. If parties attend mediation, as a method of resolving the dispute and reach an agreement, this then needs to be incorporated into a formal legal agreement
- If the parties cannot reach agreement, then it will be necessary to issue Court proceedings, and ultimately a Judge will make the decision.
An experienced family law solicitor, such as Máire McMahon with eighteen years of court experience, will be able to advice a client on proper provision and what is the likely attitude and outcome if a case proceeds to Court.