# Seperated - 10 years & 2 homes later, does ex-spouse have right to claim portion?



## Cactus-Lil (28 Jun 2006)

Hi there!

Would be very grateful if anybody could offer any advice on the following;

Have been seperated over 10 years. Up until the seperation we had been renting from the Local Authority (LA), a year after the seperation the LA offered the tennents the option of purchasing their homes. In order for me to do this at the time I had to get extranged spouse to relinquish all rights to tennancy (which was given in writing).  I then purchased this property in my sole name.

After a period of 5-6 years I sold that property & purchased another home. Have now been advised that ex-spouse may try to lay claim to a portion of my home!  Is this a possibility?  Could somebody please advise me.......I did sign a Special Family Home Declaration at the time of second mortgage which confirmed that I was seperated and that the house would not be a family home in the traditional sense i.e., no spouse.

All replies greatly appreciated.  Thanks in advance!!


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## emerald (28 Jun 2006)

HI, what backed up the declaration you just signed with your solicitor?  Did your ex sign a waiver originally?
Were you married?


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## MOB (28 Jun 2006)

"Have now been advised that ex-spouse may try to lay claim to a portion of my home! Is this a possibility?"

Yes, it is a possibility.  This does not arise from your spouse having some particular entitlement to a portion your home.  However, there is no such thing as a "clean break" divorce or separation in Ireland. Either spouse can always go back into court to seek a property adjustment.  In this case, if your ex spouse owns no house, and if a court feels you are in a much better financial position than your spouse (and if there are no circumstances which would make a court disinclined to help your spouse), it is entirely possible that your spouse could succeed in a claim for something.   If your spouse is in fact much worse off than you, and if you accept that your spouse's previous relinquishment of rights is what got you on the property ladder (while your spouse was left behind - if that is the case) then I think that if you examine the situation objectively, you might even agree that your spouse could be morally entitled to something.

Of course, no single facet of a separation\divorce case is looked at in isolation.  The courts would be slower to make an adjustment in favour of an alcoholic\gambler\person who abandoned small children etc., etc. so I really cannot give any useful opinion on the specifics of your case.

Anecdotally, the courts seem to be slower to make property adjustments in favour of men than they do in favour of women, but this is not an area of law in which I practice, so take this (and all other observations above) with a large pinch of salt.

If this is a source of great worry to you, go to a solicitor and get detailed legal advice.  I cannot see any solicitor being able to advise you that there is no possibility whatever of a claim, but if the solicitor has full info on your circumstances AND those of your ex-spouse, plus full details on the circumstances of the marriage and separation, you should be able to get a fairly helpful opinion..


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## clareG (29 Jun 2006)

One would have to ask - is it worth all the hassle and expense of legal seperation and divorce to make a clean break if there is no such thing where property is concerned.


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## mf1 (29 Jun 2006)

One would have to ask - is it worth all the hassle and expense of legal seperation and divorce to make a clean break if there is no such thing where property is concerned.

This is what the country decided - had there been a clean break situation envisaged, I don't believe that the Divorce referendum would have been passed in 1995. I think we've moved on a lot - most younger people probably would have difficulty with the idea that divorce was ever such a divisive issue. Older people still have a problem with divorce - as a society on the whole it is still not quite accepted as any kind of  norm. 

Said as solicitor who practices in the area.

mf


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## ClubMan (29 Jun 2006)

Presumably a clean break approach would "just" require suitable legislation and not another referendum?


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## Cactus-Lil (29 Jun 2006)

Hello,

many thanks to all who replied to me.........am very worried as my ex is the kind of person who could walk out on a family of four young (school going) kiddies & not feel the need to make any financial/emotional contribution to their upbringing.

I will just bite the bullet & make an appointment to speak with a solicitor....sometimes its easier not to face the reality of the situation if the reality means that the courts would see fit to divide up our family home for somebody who walked out on us.

Thanks again to everybody,

Cactus-Lil


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## MOB (29 Jun 2006)

I think it is entirely possible that "clean break" divorce would require a further constitutional amendment.   The existing divorce law operates under the following constitutional restrictions:

A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that— 
i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years, 
ii. there is no reasonable prospect of a reconciliation between the spouses, 
iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and 
iv. any further conditions prescribed by law are complied with

It is paragraph iii above which gives a problem.  I don't see how a law can prevent a court from retaining jurisdiction over deciding what constitutes proper provision.   Therefore, if the courts do not want to give  "clean break" rulings, I don't see how a new law could force them to do so.

Note that in certain cases (of ample resources) the courts have already on their own initiative given rulings which looked a lot like "clean break" divorce.  The court said, (I am paraphrasing) "while there is no such thing as a clean break, this ruling means that we really don't expect to see any of you back before this court..."


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## mf1 (29 Jun 2006)

Presumably a clean break approach would "just" require suitable legislation and not another referendum?

I think this is still a political hot potato - very few governments want to take on these social issues unless they absolutely must so I don't foresee legislation on this anytime soon. In the meantime, the Courts will deal with the cases that come before them as best they can. As many cases "settle" in advance of hearing, and incorporate  a "full and final" settlement clause ( for the protection of one side at least - and taking on board that "full and final" is not a concept recognised by the current legislation ) its the very hard cases that will  get decided. Hard cases do not make good law is the  adage - they tend to be quite extreme and very divisive. The cases are not reported but news filters out about what the courts are doing. 

mf


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## ClubMan (29 Jun 2006)

Thanks for the legal opinions.


			
				mf1 said:
			
		

> Hard cases do not make good law is the  adage


In this case shouldn't that be "hard cases do not make good precedent"?


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