Can husband keep savings and half the house in divorce?

Q&A: Dominic Coyle

In Ireland, both parties in  divorce are expected to try to hammer out terms of a settlement – financial and otherwise – governing their arrangements post any divorce. Photograph: Dan Kitwood/Getty Images

In Ireland, both parties in divorce are expected to try to hammer out terms of a settlement – financial and otherwise – governing their arrangements post any divorce. Photograph: Dan Kitwood/Getty Images

 

At the moment my husband and I are living apart under the one roof. If we divorce, would I be entitled to half his savings – I was a stay-at-home mum for most of our marriage. He has roughly €120,000. He has said he wants his name to be left on our home – both our names are on it. He also wants to buy another house from his savings and get a mortgage for the difference.

I have told him he can’t do that as the saving are our savings, as I enabled him to earn as I was at home with the children. Am I right in thinking this?

Ms C.R., email

He doesn’t want a lot does he – all the family savings and retain half the family home? That is not how it is likely to work out. But neither is there any automatic assumption that you have a right to a set share of the family savings.

It will come as no surprise to find that, in Ireland, divorce is an area where there is an awful lot of grey and very little black and white. In part, this is because it is still relatively new phenomenon in legal terms – the first divorces came before the Irish courts in 1997 after the referendum and enabling legislation.

But it is also down to the fact that every set of circumstances is slightly different and imposing a one-size-fits-all set of rules could prove very unfair in certain circumstances.

I am sorry to hear your story, not least because one of the few certainties of divorce – in Ireland or elsewhere – is that most people end up poorer out of it.

What happens in Ireland is that both parties are expected to try to hammer out terms of a settlement – financial and otherwise – governing their arrangements post any divorce. If this works out to the satisfaction of both parties, it goes before a court that will generally rubber-stamp it.

If the two parties cannot reach a settlement, the court will ultimately decide.

As a general rule, settlements are broadly 50:50 but that’s no guarantee.

But we’re getting ahead of ourselves. The first thing you will need to do is to fulfil the legal requirements for getting divorced in the first place. First up, that means showing to the court’s satisfaction that you have been living apart for two of the previous three years.

This can be complicated for a lot of couples who, like you, are effectively living separate lives but under one roof. The law says you need to show that you do not live together as a couple “in an intimate and committed relationship”. Notably, it also states that, just because a relationship is no longer sexual, that does not mean that it cannot be intimate under the law.

Assuming you get beyond this hurdle, the next big thing is negotiating a settlement.

And that brings us to the big question. What about lawyers? Lawyers get a bad rap when it comes to divorce – and family law in general. However, most are simply trying honestly to get a fair deal for their clients. Sure there are unnecessarily aggressive lawyers who almost seem to relish the humiliation of an opponent but the same goes for all walks of life – and they are nowhere near a majority.

The bottom line is that you are putting in place legal arrangements that will determine your rights and obligations in a very different family setting henceforth. Laws are precise things and making a careless mistake can cost you dearly – both financially and in terms of regret down the line.

It’s not a path I have had to travel but, if I did, I would certainly want a solicitor proficient in the area involved.

It you can hammer out an agreement between you, the legal costs will not be great – a few thousand euro maybe. Where things get expensive is if you both go to court in a contested divorce – and if it gets to the High Court, your husband’s savings will not be an issue as they will pretty much all go to meeting the costs.

Finance is only one issue, of course. Things such as future living arrangements and access to children – should they not be adults – are also very important for both of you to be able to move on and live peaceful and harmonious lives. But finances are also critically important.

There is a limited pool of family finances and, in your case, this amounts to your family home, the savings and the current and future earnings potential of both you and your husband.

In general, you would be expected to return to work after a divorce, assuming the children are old enough and you can access employment. But your earnings capacity is always likely to be lower than your husband’s if you have been out of the workforce for that long.

That needs to be taken into account. So, too, does any pension that your husband might expect to enjoy from the employment he could advance in because you were creating the backstop of a happy family home.

On the flip side, the court, in agreeing any settlement and making the necessary orders, will want to make sure that fair provision is made for all sides – and that means, among other things, making sure your husband has somewhere to live after the divorce.

It is unlikely in my view that any court would consider it reasonable that your husband would have full control of all family savings built up over the course of your married life – even if they are all in his name – as well as keep his name on the deeds of your current family home.

From a tax point of view, it is also messy for both of you. More likely, though not certain, is that you would get to keep the family home unencumbered and he might get the savings to allow him acquire a new home.

His pension, assuming he has one, is also likely to be weighed in the process of any settlement – as will any pension you might have.

This is only a very cursory run through some of the issues that might arise in the event that you proceed towards divorce. It can be an extraordinarily stressful time and will generally be life-changing.

If you are going to proceed, I suggest you do seek proper, specialist, legal advice.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice. No personal correspondence will be entered into.

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