Should I Divorce in England or Ireland?
In this blog, Family Law in Partnership Director David Allison and our guest lawyer and co-author Charlotte Finnegan of Charlotte Finnegan Solicitors at Irish Family Law Chambers, consider the key factors to bear in mind when deciding whether to start your divorce in England or in Ireland.
The blog examines:
- How you are able to start your divorce in Ireland or England;
- What factors the courts in Ireland or England will take into account in dividing the assets between you (and whether ongoing maintenance might be available);
- Whether pre or post nuptial agreements are likely to influence how your assets are divided; and
- The laws for cohabitating couples as opposed to those that are married.
Divorce in Ireland is no-fault and will only be granted where the spouses have lived separate and apart from each other for a period of, or periods amounting to, at least two of the previous three years and there is no prospect of reconciliation.
Uniquely, ancillary relief must be dealt with at the time of the granting of the decree and the court cannot grant a Decree of Divorce unless such provision as the court considers proper having regard to the circumstances is existing or will be made for the spouses and any dependent children.
If spouses have not been living separate and apart for the requisite period of time, they may be able to apply for a Decree of Judicial Separation, the grounds for which include adultery, unreasonable behaviour, or no normal marital relationship for a year prior to the date of issue. The ancillary relief available on foot of a Judicial Separation is identical to that on foot of a divorce and a court must be satisfied that proper provision is existing or will be made for the spouses and dependent children before granting a decree of judicial separation.
The legislation provides that it is possible for parties to live separate and apart while living in the same house. In such a case the parties will be required to give evidence that they were not living together as a couple in an intimate and committed relationship but rather were living separate lives. The legislation provides that a relationship does not cease to be intimate and committed merely because it is no longer sexual in nature.
Since 6 April 2022, England & Wales has an entirely ‘no fault’ divorce system. The application for divorce may either be made by one or both parties filing a statement of marital breakdown. It is not possible to defend a divorce. The process is straightforward and is dealt with entirely online through the court portal. The minimum time frame is 26 weeks, starting on the date the application is filed. A divorce cannot bs started within the first year of marriage.
Once divorce proceedings are underway it is possible to apply for a financial order. This requires a separate application.
The court has power to make orders for maintenance, lump sum(s), transfer of property and pensions sharing.
England & Wales has a discretionary system for financial claims on divorce. A judge is directed to take into account a list of factors set out at s.25 Matrimonial Causes Act 1973. The 1973 Act also requires a judge to make a decision that is ‘fair’ and gives first consideration to the welfare of minor children.
The 1973 Act is otherwise silent about how a judge should exercise his or her discretion. This has changed over the years to reflect social change. The position now, is as follows:
Sharing of Assets
A judge must determine whether assets are matrimonial or non-matrimonial. Matrimonial assets are those acquired during the marriage (including pre-marriage cohabitation) by either or both parties through their own efforts. Non-matrimonial assets are those that a person has pre-marriage or is received by them during the marriage from an external source such as a gift or inheritance. Non-matrimonial assets may be matrimonialised by intermingling with matrimonial assets.
The parties are entitled to share matrimonial assets with the starting point being equality. There is no entitlement to share in non-matrimonial assets unless this is required to meet needs. Similarly, matrimonial assets may be divided unequally to meet needs.
Needs is an elastic concept that depends on the standard of living enjoyed during the marriage.
Having divided assets, a judge must decide whether maintenance is required. Maintenance may only be required to meet needs. Both parties have an obligation to maximise the earning capacities and so maintenance is only order for a term sufficient to enable the receiving party to adjust without undue hardship.It is unusual these days for maintenance to be ordered for life, as was common previously.
The court has wide discretion and can make orders for maintenance, lump sum(s), property adjustment orders, orders for the sale of a property, financial compensation orders, pension adjustment orders, orders extinguishing Succession Act rights, and financial compensation awards. Financial or “proper” provision must be made at the time of the granting of the decree of divorce.
Section 20 of the Family Law (Divorce) Act 1996 sets out 12 factors to which the court has regard when determining proper provision in respect of the spouses. These factors include the following:-
- Income, earning capacity, property and other financial resources of each of the spouses with regard to the resources they will have in the foreseeable future.
- The financial needs, obligations and needs of the spouses.
- The age of the spouses, the length of the marriage, and the length of time that they lived together.
- The effect the marital responsibilities had on the earning capacity of each of the spouses and in particular, if a spouse had relinquished or foregone an opportunity to look after the home or the family had on their future earning capacity.
The act also provides that the court shall have regard to the terms of any separation agreement entered into by the parties.
The authorities make it clear that all property and income, no matter how it was required is available for the making of proper provision. However, not all assets will be treated the same. For example, inherited assets or assets obtained before the marriage or post separation will be treated differently to assets acquired during the marriage. The courts are clear that proper provision is not asset division.
Maintenance is generally considered as part of proper provision and is frequently awarded in ancillary-relief applications where one of the spouses is financially dependent on the other. In fact, the obligation to maintain a dependent spouse continues after divorce, even where no maintenance order was made at the time. The test is what constitutes proper maintenance support for any dependent spouse and any dependent children and the court will have regard to the ability to pay and needs of the dependent spouse/children. There is an emphasis on the ability of the dependent spouses to re-train and return to remunerative employment. Maintenance is less likely to be ordered where there are ample resources.
Pre and Post-Nups
Historically, pre-nuptial agreements were not enforceable in Ireland and the position has not been challenged since the introduction of divorce.
An expert report prepared by the Government in 2007 recommend the introduction of legislation which would enable the courts to have regard to pre-nuptial agreements without being bound by them. The expert group focused on the formalities required for such an agreement to be binding such as financial disclosure, provision of independent legal advice and execution of the agreement at least 28 days before a marriage ceremony.
Unlike many other jurisdictions, pre and post nuptial agreements are not enforceable in England. However, they are taken into account by the court and will usually be given effect, provided both parties understood what they were signing and, in particular what they were giving up – this usually (but not always) requires each to have separate legal advice and for there to be financial disclosure sufficient to give the couple a broad understanding of overall worth.
Even if an agreement meets these criteria, it will not be upheld unless it meets needs. As referred to above, needs is an elastic concept that depends on the standard of living enjoyed during the marriage. To make sure a pre or post nuptial agreement meets needs it is necessary to deal with different circumstances and make provision that meets needs in all such circumstances. The presence of children makes a significant difference to what may be appropriate to meet needs. The length of the marriage will usually also be an important factor.
Cohabitation and the recognition of “common law marriage”.
Despite thew widely held belief in ‘common law marriage’, England & Wales does not, in most circumstances recognise relationships that are not formalised by marriage or civil partnership. This means that it is not possible to make financial claims against a cohabitant or former cohabitant, simply as a consequence of the relationship or its breakdown, irrespective of needs. This can make cohabitants vulnerable, particularly if they have made financial decisions based on their relationship.
It may be possible for a cohabitant to make an application for a share of an asset or assets that are held jointly or held in the name of one of them if, in connection with solely held assets, they can prove an implied trust. This usually requires some common intention to share that the claiming party has acted on. These are difficult claims.
Claims may also be made by cohabitants on behalf of their children, which may include provision for the parent. See below with reference to provision for children.
Ireland does not recognise common law marriages. Rather, the Civil Partnership and Cohabitation Act 2010 provides for a statutory scheme under which economically dependent cohabitants may seek redress or compensation following the breakdown of the relationship. In order to qualify for relief, a cohabitant must be an economically dependent qualified dependent, i.e. they must have been residing with their partner in an intimate and committed relationship for a period of five years if they have no children or two years where there is a child or children from the relationship and they must show that they were dependent on their partner. Section 202 of the 2010 Act provides for the regulation of financial matters between the cohabitants by way of written agreement and allows for the parties to opt out of the statutory scheme.
The orders available to qualified cohabitants include property adjustment orders, compensatory maintenance orders, pension adjustment orders and other orders for provision from the estate of a deceased cohabitant. Like with divorce, the court must have regard to factors set forth in the legislation, which include the rights of other parties, the length of the relationship and the contributions made by each cohabitant, whether financial or otherwise.
Provision for children
A parent has a legal obligation to maintain his or her child until the child is no longer dependent regardless of the marital status of the parents or whether the parent has guardianship rights. A child remains dependent under Irish law until the age of 18, or 23 if they continue in full time education. A child also remains dependent where he/she is suffering from a mental or physical disability to the extent that he/she cannot reasonably maintain himself/herself fully.
There is no formula for calculating maintenance, with the level of maintenance being determined following a consideration of the income and assets of each parent, the needs of the child, and in the marital context, the standard of living enjoyed by the parties before the separation.
Schedule 1 Children Act 1989 enables a parent to make financial claims for their children. This includes maintenance and lump sum(s) for specific capital needs. A parent may also make a claim for housing. However, as the housing provision can be made only for a child during their minority or an adult child in education, such provision is made on a trust basis, with the property reverting to the paying parent later.
Claims for maintenance must usually be made through the Child Maintenance Service (CMS). The CMS has a standard calculation for child support. The CMS calculation applies only to the paying parent’s income up to £156,000 a year. Once that threshold is reached the court has power to make a ‘top up’ order. Where there is a top up order, this may include an element of a carer’s allowance to meet the needs of the other parent.
About the writers:
Charlotte is a specialist family lawyer with vast experience of family law and related matters with an emphasis on cases concerning business, investments and farming assets.
Contact Charlotte at E: firstname.lastname@example.org or T: +353 1 480 4404. Visit Charlotte’s website at www.iflc.ie.
David Allison is a Director of Family Law in Partnership, a specialist family law firm based in London, UK. The focus of David’s practice is financial claims on divorce, particularly those with an international element, but he is also well known for his expertise in the legal issues affecting cohabitants, same sex couples and civil partners.
Contact David at E: email@example.com or T: 020 7420 5000. Visit FLiP’s website at www.flip.co.uk