The amount of maintenance payable (if any) is the sum agreed as a result of negotiations that take place between your spouse’s solicitors and us. However, a maintenance order may be made if it appears to the court that a spouse has failed to provide such maintenance as is proper in the circumstances.
It is usual for the separation agreement to detail how the property will be distributed.
Where the legal title to the family home is held in the sole name of one spouse and the other spouse directly or both directly and indirectly contributes to its acquisition that other spouse may successfully claim a beneficial interest in the family home. Direct payments would include monthly mortgage repayments.
The courts have held that monies contributed by a spouse for improvements in the family home do not amount to a contribution to its acquisition and unless there was an agreement to the contrary (either express or implied) such payments are ignored in determining a spouse’s beneficial interest.
This is the right to inherit from your spouse’s estate. It is usual for a clause to be inserted by the spouses renouncing their rights to inherit in each other’s estate.
The trustees of your pension scheme are not bound by the terms of your separation agreement. The trustees can only make payments in accordance with the terms of the pension scheme.
Judicial Separation and divorce
By entering a separation agreement, you cannot apply to the courts for judicial separation. A separation agreement does not act as a bar to divorce proceedings in the future.
Civil partnerships are partnerships which can be registered under the Civil Registration Act, 2004 on application by two persons of the same sex.
A court can grant a decree dissolving a civil partnership where:
- at the date of institution of the proceedings, the partners have lived apart from one another for a period of at least two years during the previous three years;
- and provision that the court considers proper having regard to the circumstances exists or will be made for the civil partners.
Rights of Civil Partners
Once a Civil Partnership has been registered each of the partners acquires rights, including:
- (a) The shared home in which the Civil Partners ordinarily live will be subject to protection similar to that which applies in the case of married couples so that generally it is not possible for the partner who owns the home
to dispose of it without the prior consent in writing of the other partner.
- (b) A court can on application make a maintenance order requiring one civil partner to provide maintenance to the other. These orders can be enforced by the court
- (c) The Act provides the right to inherit on civil partners, similar to that of a surviving spouse. If the deceased leaves a civil partner and no children, the surviving civil partner’s legal right is to 50% of the estate. If the deceased has left children then the surviving partner’s share is to one-third of the estate. In case of intestacy if the deceased leaves a civil partner and no issue, the civil partner inherits the entire estate. Provision is included to permit a child of the deceased civil partner to make a court application within six months of the date of extraction of a grant of representation to the deceased’s estate seeking an enlarged share.
The court can make a range of financial orders on granting a dissolution of a civil partnership, similar to those which may be granted on the separation of married couple, including:
- maintenance orders
- property adjustments order
- financial compensation orders (provision by way of insurance arrangement)
- pension adjustment orders
- property adjustment orders for sale of property or relating to occupation of property
- orders providing for a surviving civil partner from the estate of a deceased former partner.
The Act also contains provision for a civil partnership to be annulled.
What is maintenance?
Maintenance is the financial support by way of periodic payments.
What is my entitlement to maintenance?
A spouse can apply to the court to have to have the other spouse provide such maintenance for the applicant spouse as is proper in the circumstances. While there is no requirement for the couple to be living apart the person seeking maintenance must be married to the person from whom they are seeking maintenance.
What is proper maintenance?
The court in deciding what is proper maintenance will consider the following:
- The income and earning capacity of either spouse or dependent children
- The property of either spouse
- Any other dependent children of which either spouse is a parent
- The financial responsibilities of the spouses towards each other and towards any dependent children of the family
- Whether either of the spouses deserted the family
Is it possible to change the amount maintenance?
Yes, the maintenance can be varied.
How do I get maintenance for my Children?
A parent or legal guardian, whether married or not, can apply for maintenance from the other parent for their children.
A summons can be issued in the District Court by a parent seeking maintenance from the other parent. The parents will be required to complete an affidavit (sworn statement) detailing their income and expenditure. If the parents cannot agree on the amount of maintenance to be paid the court on reviewing the affidavits will set the amount of maintenance.
If you have any queries in relation to any aspect of family law you can submit them through our contact form. Alternatively if you would like to arrange an appointment or request a call back you can do so through the contact form.