“What legal rights does a farmer’s wife have if she is in an unhappy marriage and wishes to leave? Can you cover such aspects as where to get advice in circumstances where the wife might be totally financially dependent on the husband? Is there an obligation to attend counselling? If there is a history of abuse, what is involved in getting a barring order? Who gets the kids? Who gets the house? What is involved in getting a separation and/or divorce?”
In the second of a two-part series of articles on marital breakdown, we will look at issues surrounding custody of children and entitlement to maintenance, family home and farm, tax and pension entitlements.
Who gets the child(ren) if I
separate/divorce?
Granting custody in terms of a divorce/separation works in either of two ways. One of the spouses may be given sole legal custody to the child(ren). In this case, for the sake of the children, they would be awarded to the same parent.
The children’s wants and preferences are taken into consideration when awarding custody, if the child is seen to have reached some maturity that allows them to understand what is happening. The other parent would have access at agreed times.
The other situation is when both parents are awarded joint legal custody. This is only given when the court believes the parents to be on good terms. The child will spend equal amounts of time with both parents.
Who is entitled to maintenance payments?
The spouse who is most financially sound is expected to pay maintenance to their dependent spouse and dependent children. Maintenance can be awarded to a spouse for their own benefit and/or for the benefit of a child who is under the age of 18, or 23 if the child is in full-time education.
If the child has a mental or physical disability to such a degree that it will not be possible for the child to maintain themselves fully, then there is no age limit for seeking maintenance for their support. Maintenance payments stop for the spouse if they die or remarry.
Maintenance payments can be arranged voluntarily by mutual agreement between the spouses or if the parties cannot agree, it will be necessary to apply to the District or Circuit Court, depending on the amount of maintenance that is sought.
At present, the District Court can award any amount up to €500 per week for a spouse/civil partner, and €150 per week for each child. If sums greater than these amounts are being sought, you will need to apply to the Circuit Court.
Who gets the family home?
In the case of a married couple where there are children, the spouse with whom the children live will often be given the right to live in the family home until the youngest child reaches 18 or 23.
A court can order that the house is sold and the proceeds divided equally or in whatever shares it considers just. It can order that the sale be deferred for a specified period of time. It can order the transfer of the house into joint names or into the sole name of one spouse/civil partner. If the house is held under a tenancy from a local authority, it can order the transfer of the tenancy.
Do I have any right to half/part of the farm?
It is not the case that a family farm will automatically have to be sold if a marriage breaks down or indeed that the farm will have to be divided in half. In a recent Supreme Court case of G v G, the court ruled that the spouse was entitled to 25% of an inherited farm.
The situation and the facts will be different in each case. The contribution of each party will be taken into account, including the financial and the personal contribution of each party within the marriage and family, particularly where there are children. These can be direct (paying the deposit on the house or making mortgage contributions) or indirect (unpaid work in the landowner’s business ie helping out on the farm or paying household expenses).
The length of the relationship and marriage is also a factor, together with the ongoing financial prospects of each individual spouse.
How will a divorce/separation
affect my tax and pension
entitlements?
If maintenance payments are made, for the benefit of a spouse, under a legally enforceable arrangement during the year in which the couple separates then:
The spouse who makes the payments is entitled to a tax deduction for the payments.The spouse to whom the maintenance is paid is taxed on the payments.Where a couple separates and no maintenance payments are made, each spouse is taxed as a single person and is responsible for filing his/her own tax return and paying tax on his/her own income. Voluntary maintenance payments (ie payments that are not legally enforceable) are not taken into account when calculating either spouse’s tax. This means that:
The spouse who makes the payments is not entitled to a tax deduction for them.The spouse who receives the payments is not taxed on them.Both spouses are taxed on their own income as single people. Maintenance payments that are made for the benefit of a child or children are ignored for tax purposes.
A court now has the power to treat a pension as an asset of the separating couple and order that it be divided into whatever shares it considers appropriate. Such an order is known as a pension adjustment order.
For example, if one spouse has a substantial pension and the other spouse who worked in the home has no pension the court can order that part of the spouse’s pension be paid to the other spouse or to a dependent child. The court can also order that part of the pension fund is split and placed into another pension fund in the name of the other spouse/civil partner.
The court will consider all of the financial resources available before making a pension adjustment order and property adjustment orders.
“What legal rights does a farmer’s wife have if she is in an unhappy marriage and wishes to leave? Can you cover such aspects as where to get advice in circumstances where the wife might be totally financially dependent on the husband? Is there an obligation to attend counselling? If there is a history of abuse, what is involved in getting a barring order? Who gets the kids? Who gets the house? What is involved in getting a separation and/or divorce?”
In the second of a two-part series of articles on marital breakdown, we will look at issues surrounding custody of children and entitlement to maintenance, family home and farm, tax and pension entitlements.
Who gets the child(ren) if I
separate/divorce?
Granting custody in terms of a divorce/separation works in either of two ways. One of the spouses may be given sole legal custody to the child(ren). In this case, for the sake of the children, they would be awarded to the same parent.
The children’s wants and preferences are taken into consideration when awarding custody, if the child is seen to have reached some maturity that allows them to understand what is happening. The other parent would have access at agreed times.
The other situation is when both parents are awarded joint legal custody. This is only given when the court believes the parents to be on good terms. The child will spend equal amounts of time with both parents.
Who is entitled to maintenance payments?
The spouse who is most financially sound is expected to pay maintenance to their dependent spouse and dependent children. Maintenance can be awarded to a spouse for their own benefit and/or for the benefit of a child who is under the age of 18, or 23 if the child is in full-time education.
If the child has a mental or physical disability to such a degree that it will not be possible for the child to maintain themselves fully, then there is no age limit for seeking maintenance for their support. Maintenance payments stop for the spouse if they die or remarry.
Maintenance payments can be arranged voluntarily by mutual agreement between the spouses or if the parties cannot agree, it will be necessary to apply to the District or Circuit Court, depending on the amount of maintenance that is sought.
At present, the District Court can award any amount up to €500 per week for a spouse/civil partner, and €150 per week for each child. If sums greater than these amounts are being sought, you will need to apply to the Circuit Court.
Who gets the family home?
In the case of a married couple where there are children, the spouse with whom the children live will often be given the right to live in the family home until the youngest child reaches 18 or 23.
A court can order that the house is sold and the proceeds divided equally or in whatever shares it considers just. It can order that the sale be deferred for a specified period of time. It can order the transfer of the house into joint names or into the sole name of one spouse/civil partner. If the house is held under a tenancy from a local authority, it can order the transfer of the tenancy.
Do I have any right to half/part of the farm?
It is not the case that a family farm will automatically have to be sold if a marriage breaks down or indeed that the farm will have to be divided in half. In a recent Supreme Court case of G v G, the court ruled that the spouse was entitled to 25% of an inherited farm.
The situation and the facts will be different in each case. The contribution of each party will be taken into account, including the financial and the personal contribution of each party within the marriage and family, particularly where there are children. These can be direct (paying the deposit on the house or making mortgage contributions) or indirect (unpaid work in the landowner’s business ie helping out on the farm or paying household expenses).
The length of the relationship and marriage is also a factor, together with the ongoing financial prospects of each individual spouse.
How will a divorce/separation
affect my tax and pension
entitlements?
If maintenance payments are made, for the benefit of a spouse, under a legally enforceable arrangement during the year in which the couple separates then:
The spouse who makes the payments is entitled to a tax deduction for the payments.The spouse to whom the maintenance is paid is taxed on the payments.Where a couple separates and no maintenance payments are made, each spouse is taxed as a single person and is responsible for filing his/her own tax return and paying tax on his/her own income. Voluntary maintenance payments (ie payments that are not legally enforceable) are not taken into account when calculating either spouse’s tax. This means that:
The spouse who makes the payments is not entitled to a tax deduction for them.The spouse who receives the payments is not taxed on them.Both spouses are taxed on their own income as single people. Maintenance payments that are made for the benefit of a child or children are ignored for tax purposes.
A court now has the power to treat a pension as an asset of the separating couple and order that it be divided into whatever shares it considers appropriate. Such an order is known as a pension adjustment order.
For example, if one spouse has a substantial pension and the other spouse who worked in the home has no pension the court can order that part of the spouse’s pension be paid to the other spouse or to a dependent child. The court can also order that part of the pension fund is split and placed into another pension fund in the name of the other spouse/civil partner.
The court will consider all of the financial resources available before making a pension adjustment order and property adjustment orders.
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