Family Law
Marital Property Claims
Marital Property Claims
It is often the case, when a married couple separates, that one or both spouses are entitled to be attributed an amount by court order equal to the amount of their contribution to the increase of the other spouses’ property during the marriage. Property acquired in the prospect of marriage is also calculated/included.
The family court is such cases examines the evidence by the two parties and orders the respondent spouse to pay a sum of money to the other.
The property (land, money in the bank, shares or objects) must have been obtained during the marriage or in the prospect of it. To calculate the increase in property, the court compares the value of the property on the day of the wedding to its value on the day of separation.
The attribution of the value the claimant spouse is entitled to may be a result of indirect contribution. For example, the contribution of a stay-at-home who helped her husband to work long hours and have substantial savings in the bank as a result and/or grow his business substantially.
The crucial time of the value of each property is the date of separation. Take for example a watch or a car which was bought during the marriage from the husband. The wife must bring evidence of its value at the time of separation and prove her contribution to its acquisition.
It is a prerequisite that the property has increased in value compared to its value when the couple was married. If something did not exist or had not been acquired at or around the formation of the marriage, its value is taken to be zero and it is enough that the object has some residual value at the time of separation to prove a value increase.
If a property was acquired by a bank loan, the money owed is taken account by the court to calculate its value. Take for example a house built by the couple during the marriage on land passed over to the wife by her parents. If on the date of separation the value of the house (excluding the land) was €500,000 and the money owed to the bank was €300,000, the house is considered by the court to be worth €200,000 and the claimant husband is entitled to be attributed a proportion of that amount equal to his or her contribution (direct or indirect) to the acquisition/building of the house.
Rebuttable presumption of 1/3
If a spouse does not succeed to prove the exact amount of his or her contribution to a specific property but it is common ground that he or she indeed had some contribution, then the court attributes to the said claimant 1/3 of the property’s increase in value unless the other spouse proves that the contribution was less. Our experience in family law will maximise your chances of success in your marital property claim.
Property Disclosure Order
A spouse in the midst of divorce procedures may apply to the family court seeking an order from the court ordering the other spouse to disclose by way of an affidavit a list of all his assets he or she owned on the date of the formation of the marriage and/or the date of separation or any other date the court sees fit. The Law authorizes the issue of such orders to aid the court in calculating any increase in property during the marriage. It is a criminal offence for a spouse who was ordered to disclose his or her property as described above, to fail to do so or disclose inaccurate or incomplete information. The offence is punishable with up to 2 years imprisonment and/or over €3,000 fine.
Interim orders and/or freezing injunctions
The family court, if satisfied that a respondent to the marital property action, may sell any property that is part of the action, upon an application from the other party may issue an interim freezing order prohibiting the respondent to sell, donate or transfer the property until the final completion of the marital property case and the final verdict of whether the applicant is entitled to be attributed any portion to that property equal to his contribution in the acquisition.
The test applied by the family court is the same with that applied by the District court in cases where parties to the action apply for any interim remedies until the final decision in the case. The court in order to issue such order must be satisfied, in general terms, that it is in the interest of justice to preserve the status quo of the material time so that those assets are still available to satisfy a final court order.
The above information is not intended to be used as a legal opinion and are merely examples to aid the reader in better understanding their legal position. Please feel free to contact us today if you require legal advice for your specific situation.
