Asset Division Criteria

There is no time limit for an ancillary relief application. It may be heard in the divorce petition once requested. However, it may also be made many years later.

When exercising its powers to grant ancillary relief, this is to have regard to various factors. It is to have regard to the whole circumstances.

• The first consideration is to be given to the welfare of a minor child. In this context, it is not the only consideration but a significant factor.
• The income-earning capacity, property, and financial resources of each party at present or in the foreseeable future, including an increase in earning capacity that would be reasonable to expect a party to the marriage to take steps to acquire.
• The family needs and obligations and responsibilities of each party, which they have or are likely to have in the future.
• The standard of living which the parties enjoyed prior to the breakdown of the marriage. This would yield to financial circumstances.
• The age of the parties and duration of the marriage
• Physical or mental disabilities of the parties
• Contributions which each of the parties has made or is likely to make in the foreseeable future to the welfare of the family, including contributions by looking after the home or caring for the family.
• The conduct of each of the parties if it would be inequitable to disregard it. This reflects the broad no-fault principle. Misconduct is only relevant if it is exceptional.
• The value for each of the parties of benefits including a pension which by reason of the dissolution of the marriage may be lost.

Where there is a child, the court is to have regard to the following additional considerations.

• Child’s financial needs,
• income, earning capacity,property, and financial resources of the spouse,
• physical and mental disabilities
• The manner in which he was or is expected to be educated or trained
• Income, financial needs, standard of living

The clean break principle

The legislation obliges the court to consider whether in making an order for sale or adjustment of an entitlement, the property or finance whether a clean break would be appropriate. In many situations, a clean break will not be practicable. A clean break may not be appropriate for a range of reasons in particular where there are minor children.

It is considered whether a clean break may be achieved at or shortly after the decree. It is more likely to happen where the parties are young or the marriage was brief, the parties  are wealthy or are not wealthy and are supported by benefits.

A clean break may be engineered through granting periodical payments for a short period which is defined. This may be relevant for children or about to become of age or where the same is necessary to attain financial independence.The court must consider whether it would be just and reasonable to terminate financial obligations.

When one spouse cohabits in the matrimonial home, the cohabitant must make contributions so that the periodical payments of the ex-spouse are reduced. Where this is a possibility, the courts may not consider a clean break approporiate.

A will is not revoked by divorce or judicial separation. A will is revoked by marriage.

Where a divorced person has died, any provision made in relation to the ex-spouse will take effect as if he or she had died on the date of the divorce. The executor or trustee appointment  lapses in the absence of indication to the contrary, an appointment as a guardian will cease.

Where a deceased has made no or inadequate provision in his will for a spouse or former spouse, he or she may apply under the Provision for Family and Dependants NI Order. See the separate section on this legislation. A spouse may claim provided he or she has not remarried or provided he or she has not been barred by an order under the matrimonial and family proceedings.

In the case of a separated spouse where one party dies intestate where separation is continuing, the intestacy rules take effect as if the other party to the marriage has died. This only applies only where there is a decree for judicial separation.

A divorced spouse is no longer a spouse.