Divorcing can be a costly business as assets go into the melting pot

BUSINESSES, farms and other major assets all go into the melting pot when it comes to divorce and a division of assets.

However, according to Ann FitzGerald of FitzGerald & O’Leary solicitors, what happens to these assets depends in the particular circumstances of the divorcing couple and how long they have been married.

“All assets in principle, from whatever source and regardless of when acquired, come into consideration when examining what might be proper provision for divorce.

Inherited assets are more likely to be disregarded where the overall size of the estate for distribution is large,” she said.

Ms FitzGerald said a spouse anxious to move on and progress after a separation would be well advised, all other things being equal, to seek a divorce as soon as possible after the four years minimum living apart period has passed so as to minimise exposure of assets acquired post separation.

More than six years on from the introduction of divorce, the Supreme Court finally delivered guidelines on how family assets should be distributed, she said.

Ms FitzGerald, a specialist in family law, told a business breakfast meeting in Cork, that the Supreme Court has confirmed the correct test is to provide “proper provision” for the spouse and children, as opposed to a specific division of the assets.

However, in cases where there are ample resources, the Supreme Court, in the landmark decision of T-v-T, has declared that in seeking to achieve "proper provision" the courts should look at a benchmark of awarding between 33% to 50% of the total assets to a non-earning spouse.

The division will depend on the circumstances of each of the parties.

“Further in such cases, the court has finally opened the door to the possibility of divorcing couples, and even separating couples, reaching "clean break" settlements, thus limiting the rights of the parties to review the settlement at a later date,” she said.

The clean break issue has been a central concern since the introduction of divorce in Ireland. “Up to now it has frequently been the case that both spouses to a settlement desire finality so as to move on with their lives but until the decision in T-v-T. this result could not be achieved.

Now, there is the real prospect that separating and divorcing parties can realise this objective,” said Ms FitzGerald.