# family law Q



## misse (9 Jan 2008)

Q re family law will try keep it as brief as possible-

Married couple 4 kids. Seperated 15 yrs ago Legal seperation in '95.
Court ordered terms of seperation:
mother  got family home
joint custody of kids
maintenance agreement which was index linked
large amount of land and partly finished house to be put in 4 kids names (father has life interest)

This was a very disturbing and stressful seperation.  The father is a very ruthless man. Took mother for custody and fought her very hard for every thing.  Family home was in joint names, land and partly finished house was in his(but she contributed money on works on it, which was pd back just before te seperation agreement)

due to the stress and confusion the mother agreed to alot of terms that she now thinks are unfair and that she feels she was bullied into. She now feels that she signed alot of things under duress, stress and nerves.  She wasn't mentally fit to fight anymore.

Father has since the speration agreem,ent bought 4 properties in joint names with current partner(one of which he failed to declare at the time of sepration agreement)

They are not divorced. Father is now looking for divorce.

Question:
Is she entitled to a share in the house that he didn't disclose at time of seperation agreement?

Would she have been entitled to a share of the house and land instead of just getting it in the kids names?

Would she be entitled to a lump sum in a divorce?

Is she still entitled to maintenance with 1 dependant child remaining?


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## Perplexed (9 Jan 2008)

To the best of my knowledge the whole thing can be gone through again in a divorce as it's a different proceeding from a separation.  There are two different kinds of maintenance, personal & childrens. In spite of going through the process of separation she doesn't seem to have had very much explained to her, or else she was too upset at the time to take it all in.  She needs to seek really good legal advice & make out a list of all the questions she needs answers to.


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## misse (9 Jan 2008)

She was far too upset at the time to have any good understanding at the time. Father used the deploy of custody as a distaction because this would have her nerves gone and it worked.  Wouldnt mind but since then he hasn't bought a shoe for any child!  She is with a solicitor at the moment which I have also visited with her and I don't think he is too bothered about doing anything unless he has too! (It's like pulling teeth, often wondered if he is being paid off!)

Thanks a mill for ur reply please keep them coming as this lady needs help 15 yrs later and she still haunted by this man! She can't move on !


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## shesells (9 Jan 2008)

Gerry Ryan had a really good family law expert on last week talking about situations like this. From what I remember it is as Perplexed already said. Might be worth looking up the show's website for the full interview.


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## Stifster (9 Jan 2008)

misse said:


> They are not divorced. Father is now looking for divorce.
> 
> Question:
> Is she entitled to a share in the house that he didn't disclose at time of seperation agreement?


 Not necessarily in the property itself, though it should have been taken into account.



> Would she have been entitled to a share of the house and land instead of just getting it in the kids names?


Not necessarily.



> Would she be entitled to a lump sum in a divorce?


possibly



> Is she still entitled to maintenance with 1 dependant child remaining?


yes (maintenance is not the mothers right, it is the childs requirement and the father's obligation.)

If i was her solicitor I'd be playing hardball. At the same time the legal fees for a fight would be significant, does she have the monet to pay for it?


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## misse (9 Jan 2008)

She does have some money to pay but his means would out do hers no problem.  He previously employed a v well known barrister who charges a huge amount she couldnt fight at this standard. She currently has a solicitor but doesn't seem to be getting very far with him. As for maintenance she gets a set amount for her and a set amount per child would be around 160pw 

Thanks for your reply what route do you suggest for her?


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## MOB (9 Jan 2008)

"As for maintenance she gets a set amount for her and a set amount per child would be around 160pw"

Is she getting €160 per week per child?  or €160 per week in total?   the first would  be reasonably decent; the second a little light - indeed it would be very light if she has no earnings of her own.

On the alleged unfairness of the arrangements already made, the major asset would appear to be the 'large amount of land'.  (I assume we are talking a good sized farm).  I think it might help to consider it in the following light:

1.    As regards putting the land into the name of the children, this is not something which a court would normally order against the wishes of one or other party, but it is something which spouses might agree between themselves and then a court order would be made to give effect to the agreed terms. 

2.  Where spouses do agree to this, I think there is merit in it.  Many people would view a landholding as being something which is rightfully the property of the next generation, with the present owners being only the custodians.  It is not necessarily logical, but it is a very common attitude, especially in farming families.   

3.  At the time of the separation, there was a possibility that either the husband or the wife would go on to have children in another relationship.  This in turn would have raised the possibility of the farm ending up in the hands of the dreaded 'outsiders'. 

4.  The arrangement which was implemented in this case secured the inheritance for the children of this marriage, presumably buying some peace of mind on this issue for either or both of the separating spouses.     

5.  While the wife may now regret agreeing to do this, I do not think that there is anything inherently unfair in what was done.  Far from it in fact.  It is often an eminently sensible arrangement in the case of a family farm.  Splitting a farm (as often happens) can leave the farming business unviable, damaging the ability of the farming spouse (if he\she is the primary earner) to earn enough to pay maintenance to the other spouse and leaving a nasty taste for years.


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## mf1 (9 Jan 2008)

This is very similar to a case I had recently. Counsels advice was that if the aggrieved party was unhappy with the Court Order, they should have appealed it back then. Its not enough to say 15 years later that " I was bullied into it" - its too late for that. As to whether my client would get any more in a Divorce, the feeling  was that the original Order was not unfair, that the Courts are increasingly looking at full and final settlement and however unfair anyone thinks it is, that there probably would not be a change other than perhaps in maintenance. Counsel also said that if maintenance was an issue, then application should have been made before now to increase same. 

When people come to the lawyers, very often they are looking for a miracle. Miracles seldom happen and, in this case, clearly the husband is not a generous, giving man. He will fight her tooth and nail - is this what she wants? In any event, he has to file his financial papers - she does not have to settle the case with him, she can keep her side of things relatively simple , push it into court and let the court decide. He may very well decide he'd prefer to buy her off than to take his chances in Court. 

In the end bloody matrimonial cases are just that - bloody. And that is down to human nature. Bloody minded people will be bloody minded whether in mediation or in Court. T

And I concur ( as we say in the trade) with MOB. 

mf


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## misse (9 Jan 2008)

MOB said:


> "As for maintenance she gets a set amount for her and a set amount per child would be around 160pw"
> 
> Is she getting €160 per week per child? or €160 per week in total? the first would be reasonably decent; the second a little light - indeed it would be very light if she has no earnings of her own.
> 
> ...


 
She getting 160pw in total! He not even paying that properl!  Missed various payments throughout the yrs, hasn't pd for 6 month before sept then gave it to her in a lump sum in Sept and she has been paid nothing since!

re no.5 of your points the farm was never sole income. He has a good construction job.

would you think she should just cut her ties and give him the divorceand leave it as things stand?


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## MOB (9 Jan 2008)

"would you think she should just cut her ties and give him the divorceand leave it as things stand?"

Impossible to answer without knowing an awful lot more.  My inclination is that she should perhaps try to get the maintenance up a little;    However, it is the law that a decree of divorce can not be given unless the court is satisified that proper provision is being made for her;  as MF1 says, she does not have to agree to anything at all, or even negotiate;  She can simply let it go to court and let the court decide.


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## mercman (10 Jan 2008)

Just read this Post and can only comment on what a swine. I fail to understand as to how a man expects a wife to produce four children and then bugger off and make her fight for every penny. I am no expert in this kind of thing, but I have a close colleague you has assisted his sister in fighting a very similar case very recently. She is using a pretty useful legal team. The female element is in a similar financial position as your friend. If you want to PM me or state what part of the country she resides I will get the details of the legal team if you want. The law has changed considerably in fifteen years and recognition is taken normally for the woman and the fact of her rearing the four children as in this case. Regardless, I wish her the very best of luck.


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## MOB (10 Jan 2008)

Hi Mercman,

I think you may be jumping to conclusions just a little bit.   Your conclusions may of course be correct, but they are not yet supported by actual evidence.  We don't know that the husband in this case 'buggered off'.  He may have been thrown out; he may have initially been barred on foot of baseless allegations (the law in this area has changed a lot over the past 15 years as well....);   We do know that he surrendered his interest in the family home.  We also know that he has a new partner; We know that the existing farm has been committed to the children of the first marriage, We know that there is an order for joint custody and that the father has not bought shoes.  Apart from not buying shoes, we don't actually have any info on how involved he has been in parenting.  (There are four children in my family, concidentally, and their father has never bought shoes.  It's not a dad thing).  Has he had them 1 night a week? or 4?  Does he do the school run?  Does he do the collecting and dropping off for other things?  Does he bring them to swimming\soccer\football?   Does the mother?  

Without a whole lot more info, it is, I think, very wrong to go straight to judgement.  


We don't know that the wife devoted herself full time to raising the four children.  She may well have had her own career too.  The question was delicately asked but not answered.  If she had no other income, I would have thought the OP would have volunteered this info.

I am not criticising the OP, who obviously has his\her own perspective on the thing, but it is very noticeable on topics like this that the initial posting usually only gives one side of the story, and tends to dwell only on those aspects which support a particular viewpoint.  To paraphrase, I think, Mark Twain, we are getting a handsome dividend of conjecture here from a trifling investment of fact.


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## misse (10 Jan 2008)

MOB said:


> Hi Mercman,
> 
> I think you may be jumping to conclusions just a little bit. Your conclusions may of course be correct, but they are not yet supported by actual evidence. We don't know that the husband in this case 'buggered off'. He may have been thrown out; he may have initially been barred on foot of baseless allegations (the law in this area has changed a lot over the past 15 years as well....); We do know that he surrendered his interest in the family home. We also know that he has a new partner; We know that the existing farm has been committed to the children of the first marriage, We know that there is an order for joint custody and that the father has not bought shoes. Apart from not buying shoes, we don't actually have any info on how involved he has been in parenting. (There are four children in my family, concidentally, and their father has never bought shoes. It's not a dad thing). Has he had them 1 night a week? or 4? Does he do the school run? Does he do the collecting and dropping off for other things? Does he bring them to swimming\soccer\football? Does the mother?
> 
> ...


 
To answer your questions:

marriage broke down when he started a relationship with another woman he left the home no barring order or anything like that.  Had v little involvement with kids while they were young (although was supposed to pick up each wkend did so only when suited could be gaps as big as 6 months maybe more)as they got older got more involved but not in the right way(ie. kinda bought the kids the best I could explain it).  Never contributed anything unifroms, school books, Xmas etc. I remember wife asking for help for books and he told her to go to solicitor-never got the help.  Wife was a full time mother with no schooling after he left had to take a min wage job. Although did inherit money 5 yrs ago (no more than 70-100k).  

I know I sound v one sided and yes I do have my own opinion.  This man seems to be allowed put his wife through the mill and seems to be above the law.  Hard to believe but there are people that are like this!

As for going back to court father has sent a message of sort through the kids that if goes back to court he will leave her with nothing.  So she is in limbo and doesn't know what to do.


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## RainyDay (10 Jan 2008)

There is an interesting case study in [broken link removed] publication about reopening of old 'full and final' divorce settlements. But I guess you'll need specific legal advice on thsi particular case.


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## Stifster (10 Jan 2008)

misse said:


> As for going back to court father has sent a message of sort through the kids that if goes back to court he will leave her with nothing.  So she is in limbo and doesn't know what to do.



It won't be his choice.

I note that you haven't said how much the family home is now worth, she did get it 15 years ago and i assume it has appreciated somewhat in value since then. The children must be almost self-sufficient too.

She can go back to court and I suppose is unlikely to be left worse off...the failure to disclose the asset could be important.


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## Perplexed (10 Jan 2008)

Oops  ...I posted twice !


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## Perplexed (10 Jan 2008)

As someone who's been through these proceedings myself, I have great sympathy for this lady.  What amazes me is that so much is down to the judge & his mood etc on the day. I've seen women get a great amount at the hands of the judge & I've seen others who were perhaps more deserving get less......it's all a bit of a lottery.  The whole experience is very upsetting & I think the emotional stress on the females seems much more than on the males. We tend to give in just to get it over with & for the sake of the children.  I wish her luck ...


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## MOB (11 Jan 2008)

"The whole experience is very upsetting & I think the emotional stress on the females seems much more than on the males. "

I can't accept that this appearance is accurate.  It is, I am sure almost impossible to find reliable data for stress levels on a gender basis, but we do have the hard fact that the male suicide rate greatly exceeds the female suicide rate.


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## misse (11 Jan 2008)

Thanks a million for all your replies you's are brill!

Family home is about 400k.  I have been telling her (she cant use the net)what you all been saying think she considering letting it go back to court.  If she does should she emphasise about the house he didn't disclose and about maintenance? 

Iknow i'probably being a pain in ***e but'll keep your brains exercised!


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## Tadhgin (11 Jan 2008)

Misse,
Has he a pension or PRSA? The Lady's solicitor should pursue this also during divorce proceedings.


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