What Constitutes Proper Provision In Family Law Cases
Proper provision is a concept provided for in the 1996 Family Law Divorce Act. It is a test which the Court must apply when making decisions either in the context of Judicial Separation or a Divorce.
In order to assist the Courts the Family Law Act 1995 and the Family Law Divorce Act 1996 set out an identical set of factors which the Court must have regard to when deciding what constitutes “proper provision” .
These factors include the following:
1. The income earning capacity and resources of the parties now and into the future
2. The accommodation needs of the parties
3. The reasonable expectation of the parties as to their standard of living into the future
4. The length of the marriage and the time they were living together with the age of the parties
5. The ages and needs of the children
6. If either of the parties suffer from any mental disability
7. Whether either party made any sacrifice to their career should be taken into account
8. Any statutory benefits which either party may be in receipt of
There have been several cases in the High Court which have established certain principles in what are known as “ample resources” cases. These would include the principle that inherited assets or indeed assets brought into the marriage are not to be regarded as assets of the marriage and are not be considered by the Court unless it would be unjust to exclude them.
It should be borne in mind however that in most Circuit Court cases the reality is that if the Court were to adopt this position i.e. exclude inherited assets/assets brought into the marriage in many cases it would in fact be unjust to exclude them as it would disadvantage one of the parties significantly through no fault of theirs and might impact on their ability to achieve suitable accommodation for them/the children of the marriage or a suitable and reasonable income going into the future.
It is a matter for the Court to try and assess what is objectively fair taking into account the contributions that each party has made to the marriage and also any sacrifices that any party might have made such as one of the spouses remaining at home to look after the children while the other spouses earned substantial income. It has to be borne in mind that for the spouse that has stayed at home it would be much more difficult to kick start his/her career from that point onwards particularly if he or she is still looking after the children whereas the spouse who has cultivated a successful career can continue in that vein.
Ultimately, every case must be judged on its own circumstances and the facts of the particular case. For this reason, advice of an experienced Practitioner should always be sought.
For further advice on this or any Family Law Matter please do not hesitate to contact Brendan Dillon or Lorna McArdle on 01-2960666