I'm worried my husband won't declare all of his assets during divorce

Withholding information on assets during a divorce can have serious consequences, warns rural solicitor Karen Walsh.

Withholding information on assets during a divorce can have serious consequences, warns rural solicitor Karen Walsh.

Dear Karen, 

I am in the early stages of a divorce, and I am thinking of representing myself. I am unclear on what I am entitled to. The wording in the legislation is “proper provision”? What does this mean? What if my husband does not declare all his financial assets, which I suspect he will not? I stayed at home to rear our three children over the years while my husband farmed.

Dear Reader, 

By virtue of Section 20(1) of the 1996 Act, the Court shall ensure that such provision, as the Court consider proper, having regard to all the circumstances, exists or will be made for the spouses and any dependent member of the family concerned.

When deciding on “proper provision”, the Court shall, in particular, have regard to the following matters: the length of the marriage, the contribution both parties made to the marriage – financial or otherwise, the current and likely future income, the earning capacity and assets of each party, the current and future financial needs and obligations of each party, the standard of living of the family before the marital breakdown, the age of each party, the accommodation needs of each party, the input which each spouse has made or is likely to make to the welfare of the family, the decree to which the marriage affected the ability of each party to earn and the conduct of each party.

This is a general guide, rather than an exhaustive list. Divorce in Ireland does not take fault into account in most circumstances. The role of the Court is to divide assets in order to provide financial support for spouse and children and to reach agreements in respect of custody. Its role is not to punish either party.

It is critical that both parties give an accurate account of their assets and finances to the Court, but parties should also ensure that an auctioneer, who is experienced and knowledgeable, in relation to the value of stock, Basic Payment Entitlements and farm machinery, is instructed to carry valuations for Court. 

Realistic valuation of assets should always be obtained. Full financial disclosure from both parties is crucial. The subsequent discovery of an asset not disclosed by one spouse at the time of judicial separation or divorce provides an opportunity to reopen legal proceedings at a later date.

If you feel that your husband is not declaring his full assets or the full value of his assets in the proceedings, you can make an application for discovery to the Court, compelling him to produce certain information and certain documents. It is strongly advisable that you instruct a solicitor to deal with this on your behalf, given the length of the marriage and if you feel there may be non-disclosure of assets.

In the case of SN vs PO’D, the husband submitted that the wife had not fully disclosed in relation to her companies prior to the settlement, and that she had subsequently sold her companies for a large sum. 

The husband was awarded a further €500,000 for what the Judge called an “Information Deficit Loss”, which meant that the Judge found that she had not intentionally withheld the information, but that it had, nonetheless, not been made available to the husband and accordingly impacted on the settlement.

The decision was appealed by the wife to the Supreme Court, and that Court substantially increased the overall payment to the husband. This is one of the few examples of where the Court penalised a party to matrimonial proceedings for failure to make full and proper financial disclosure.

Karen Walsh, from a farming background, is a solicitor practising at Walsh & Partners Solicitors, 17 South Mall, Cork, and 88 Main Street, Midleton, Co Cork, and also the author of 'Farming and the Law'. Walsh & Partners also specialises in personal injury claims, conveyancing, probate, and family law.

Email: [e-mail] 

Web: www.walshandpartners.ie

• While every effort is taken to ensure the accuracy of the information contained in this article, Karen Walsh does not accept responsibility for errors or omissions howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.