Author: Aislinn Collins

Huge congratulations are in order for the Wolfe & Co LLP Managing Partner Helen Collins for being appointed by the Supreme Court as a Notary Public.

Helen is pictured above at her recent graduation ceremony in the Law Society of Ireland with the Chief Justice, The Honorable Mr. Justice Donal O’Donnell.

Helen Collins is a Solicitor, a Collaborative Practitioner, a Certified Mediator, a co-founding member of the Association of Collaborative Practitioners and now a Notary Public.
Helen has over 45 years in legal practice and specialises and has extensive experience in all aspects of Family Law and dispute resolution.
She is the author of A Short Guide to Divorce Law in Ireland – a Survival Handbook for the Family which was published in March 2014 by Cork University Press.

The slightest mention of a will or an Enduring Power of Attorney (EPA) can elicit fear in even the most rational of people. We understand that these are generally things that most people do not want to think about. However, their importance cannot be overemphasised. Having a will and an EPA in place will ensure the smoothest transition possible for you if you begin to lose capacity and for your loved ones into a life without you.

“Why do I need two separate documents to prepare for my death?” I hear you ask. Well, let me explain.

Wills

A will is your opportunity to make sure that your final wishes are met and that your estate is distributed how you would like, to the people you want. Otherwise, the law determines who your estate is ultimately passed to and how it is divided. It is very important to note that a will has no effect until the date of your death and is relevant only to the property you have at the time of your death.

When a person dies without having made a Will, they are said to die “intestate”. Under the Rules of Intestacy in Ireland, a strict line of entitlement is followed and the deceased or their family has no say is how your estate is ultimately distributed.

It is important that you make your will for today’s circumstances and keep it under constant review as your circumstances and those of any dependents change. Choose a day in the year, New Year’s Day or your birthday and give five minutes to consider your will. Is it up to date? If not, do what is necessary to bring it up to date.

Before making a will, you should think about the following:
1. Make a list of everything you own.
2. Choose two people that you trust to appoint as your executors. The executors will be responsible for carrying out your wishes. It is important that these people are organised and efficient.
3. Make a list of people that you want to leave something to. These are called your beneficiaries.
4. Visit your solicitor to draft your will. The draft will be worked into a document that you are happy with, you will sign it, as will two witnesses.
5. Amend, if necessary, throughout your life.

Wills are one of the most crucial legal documents that you can possess. While on the surface they appear to be a simple document, a simple mistake could render the will invalid. Your safest option when deciding to make a will is to speak with your solicitor. Solicitors make wills day in day out. More importantly solicitors know how to manage your estate after your death and will be in a position to advise you fully on all possible outcomes.

“Okay that makes sense. If my will is in place then what do I need an EPA for?” Well, let me tell you.

Enduring Power of Attorney (EPA)

Any person may become incapable of managing their own affairs at any stage in life. An accident, ill health or mental illness may make the everyday routines of paying bills and making financial decisions difficult and stressful, and in many cases, impossible. When a person becomes incapable of managing one’s affairs it can be a difficult time both for oneself personally and more importantly one’s family and close friends. It is important to note that family and friends do not automatically have the right to take over your affairs once you lose the ability to manage them yourself for whatever reason. Therefore, from both a practical and financial point of view it makes sense to consider appointing an attorney under what is termed an “enduring power of attorney” should that day arrive. In planning ahead and making an EPA, you are able to give your instructions whilst you are of sound mind, in anticipation of the possibility of not being capable at some future date to manage your affairs as you would otherwise wish.
An EPA can ensure that if you were to lose capacity for whatever reason, your financial affairs, in addition to other personal and property issues, would be looked after by someone you yourself have chosen and is trusted by you. It is important to stress that the completion of an EPA does not restrict your right to go on looking after your own affairs for as long as you are capable. The appointment of an attorney simply means that there is someone to take over if and when you cannot cope. If you wish, you can restrict the scope of the EPA by giving your attorney a specific authority to do only certain things on your behalf. In making your choice of attorney you need to be mindful and aware of the responsibility you will be placing on your attorney’s shoulders. It is always advisable to discuss with your attorney beforehand if they are willing to act and what exactly you require of them.
An EPA should be discussed with your solicitor as part of succession planning and the will making process. When you are young and healthy is actually the best time to put an EPA in place. Average life expectancy in Ireland is increasing every year and it now sits at approx. 83 years of age. It is therefore apparent that having an EPA and a will in place are considerations that are more important than ever before. Each of these documents should be considered relative to the other and cohesively intertwined.

It is important to note that there is legislation due to commence in April of this year and changes may be very well made to the EPA process. I will be sure to keep you informed of any updates.

Wolfe & Co LLP are experts in the field of estate planning and are here to assist you throughout the process.

By Aislinn Collins Solicitor.

This article is for general information purposes/general overview only and does not constitute legal or other professional advice. We recommend seeking legal advice to interpret and advise on any aspect of the law.

March 2023 Wolfe & Co. LLP Solicitors

 

A family farm is a complex asset. The farm may have been held for generations and in diverse forms of ownership. For example, the assets and business may be held through a limited company with numerous shareholders, who are often other family members. It may be held through a will trust or family partnership. This may mean that the assets and resources enjoyed directly by a couple and used by their family may not be owned by them personally. This leads to difficulties for the Court in achieving proper provision for both parties of a divorce.

Transferring the farm

The 2020 Teagasc National Farm Survey reported that the average age of farmers in Ireland was 59.2 years. The Irish Farmers Association believe that an important factor contributing to the low rate of transfers to the next generation is due to the concern by senior farmers of the implications of a possible marriage breakdown in the case of the young farmer, and subsequent legal judgments affecting the family farm assets.

The notion that a woman who marries a farmer walks up the aisle with a bunch of flowers and walks down again with half the farm in her pocket is one that has terrified Ireland’s farmers ever since divorce was legalised in 1996. Despite numerous incentives for an early transfer of the farm such as stamp duty relief for young trained farmers, this fear has led to delays in senior farmers transferring the farming business to young farmers.

However, there is a misconception that a spouse is automatically entitled to half of the farm in the event of marital breakdown. While this might be the case in some situations, it is not the case in all.

The Supreme Court has stated that inherited assets should not necessarily be considered to be assets of the marriage. The date when the assets were inherited is also a factor – if the inheritance was received a long time ago it is more likely to be included in the assets to be divided between the parties.

The outcome of family law proceedings depends on the particular circumstances of each case. Judges will take into consideration how long the couple have been married, or whether the non-inheriting spouse has carried out any work on or invested any money in the family farm. The Courts are also cognisant of and recognise the contribution a non-inheriting spouse makes by looking after the home or caring for the family. It also recognises the impact that assuming all the childcare duties can have on a career.

Should the Court take the view that the inherited assets are not matrimonial property the Court will nonetheless take their existence into consideration. If a Court is satisfied that proper provision can be made for the non-inheriting spouse with other marital assets that the parties hold, the inherited farm will remain with the inheriting spouse.

Judges are reluctant to force the sale of a farm, especially if a farm is viable and the income from the farm is being used to provide for dependent children of the marriage. The sale of the farm is often unsuitable particularly where the farm is a small-holding, as it can often be the main source of income for both spouses, and to do so, in order to make proper provision for the wife and their children, would also end the employment and income of the farmer.

The Family Home

A major issue for some farms is the fact that the family home is embedded in the agricultural farmland. If there are dependent children, the Court may allow the non-inheriting spouse to remain in the family home with the dependent children for a certain period of time. This could, in-turn, have a knock-on effect on the farmer as they may have to rent a property away from the farm, several miles from cows calving and sheep lambing, which is also not a practical solution.

Agricultural Expert

A vital addition to any farming divorce would be the intervention of an agricultural consultant and valuer. They will be in a position to advise the parties on the possible solutions in terms of the operation of the farm. It is never desirable to force the sale of assets which might in turn threaten the viability of a farming business. Having to dispose of a part of the grazing platform, in the case of a dairy farm, may render that enterprise non or marginally viable whereas the enterprise may have been capable of servicing a loan that could have financed the proper provision required for the non-inheriting spouse.

The expert’s report will be crucial in this regard as it will offer a number of suggestions as to how a financial lump sum might be funded thereby making the judge aware that a sale of land is not the only available option. The report will also highlight any farm structure or access issues that may render a sale difficult, impractical or downright impossible.

Pre-Nuptial Agreements

Pre-Nuptial Agreements are not recognised in Ireland and are not binding on the family law Court. The Irish Farmers Association has long campaigned for the introduction of Pre-Nuptial Agreements in Irish Family Law. They insist that the asset value of a farm should be ringfenced because, unless that farm is kept intact, its income-generating potential is destroyed.

While they have an arguable point, the difficulty that arises with Pre-Nups is that they are made before marriage, but may not be applied until many years later. A couple, in particular a young couple’s circumstances may and likely will have completely changed. It would be a fair assumption that a young couple would go on to have children and the pre-nup cannot possibly determine how the future will pan out. An agreement that was originally reasonable could now be completely unfair.

The Court will not agree to have its “discretion” fettered by an Agreement that came into existence long before the circumstance existing at the time of the Court proceedings.

The breakdown of a relationship is always a difficult and traumatic time in people’s lives. When a business and other factors become involved it becomes increasingly more challenging. Positive and workable solutions are always achievable.

Wolfe & Co LLP are an invaluable support to you to help you and will assist you through this difficult chapter.

By Aislinn Collins Solicitor

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

 

March 2023 Wolfe & Co. LLP Solicitors

Wolfe & Co LLP Solicitors are celebrating all of our strong, intelligent and powerful women today and every day. The Law Society of Ireland are today marking 100 years since the first female Solicitor was entered on to the Roll. What a journey it has been.

New EU regulations have prompted companies to move their pension schemes to a master trust which manages multiple pension schemes and are an attractive option for companies as the increased risk and compliance costs can be spread across all of the participating employers using the trust.

“Why does this affect me?”, I hear you ask. The unintended consequence of this is that Court Orders in Divorce and Separation cases, requiring death in service payments to be made to the surviving ex-spouse or dependent family members, can no longer be enforced. This is because the Order relates to the original pension scheme and not the new master trust.

The Law Society assures us that they are working with the Government and the Pensions Authority to ensure no person is unduly affected by this.

While we are of the firm view that a Court Order of any kind cannot be disregarded, we would urge any of our clients who have received a letter from their pension company or who are in any way concerned, to contact us.

 

By Aislinn Collins Solicitor.

 

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

 

March 2023 Wolfe & Co. LLP Solicitors

Many people come into a relationship bringing with them an already established family business. Others may choose to establish a new family business, together or separately, during a relationship. However, when relationships fail and couples are faced with Divorce, the question of what will happen to this business then naturally becomes a source of huge concern.

What can be beneficial for couples where an already established family business is involved, is the creation of a Pre-Nuptial Agreement before marriage. It is important to note that Pre-Nuptial Agreements are not recognised in Irish Law and are not binding in any Court. However, they can be a factor which Judges may consider in a future Divorce application if there has been full and open disclosure of all assets and if both parties have had the benefit of independent legal advice.

While the desired goal of the Family Law Courts is to try to keep family business assets and inherited assets brought into the marriage, out of the marital pot, this is not always possible in your average divorce case, due to the need to properly provide for both parties.

In considering how to deal with business assets, certain key factors are important:

1. When was the family business established?

It is important to first establish the full history of the business. You would need to be clear on when it was set up and who made what investments into the business. Sometimes, the business is older than the relationship and this can strengthen the argument that the person who brought the business with them should retain it. However, this would need to be balanced against the delivery of proper provision for the other spouse, the overall needs of the family and any dependent children.

2. What role does each spouse have in the family business?

A spouse’s role in the family business can have many guises.  In establishing what their role is you need to look at whether they managed the day-to-day operations of the business or whether they worked in a specific role, either paid or unpaid.  It could be that they made a financial investment in the business or it could be a direct legal involvement such as directorship.  Also of relevance, is that one spouse may have given up work in order to support the family, which in turn enabled the other to successfully progress in the business.

It should be noted that being a director of a company does not constitute ownership of a company. If a spouse or partner has been made a director or a company secretary, they will not necessarily have ownership or shares in the company or business. It could be beneficial, at the outset, to create a specific buy-sell agreement so that there could be a relatively fixed cost to buy one or other out. It would also be important to set out payment terms and a dividend policy in the business contracts.

However, it is important to remember that there is no guarantee that these agreements will be adhered to by the Court. Due to the concept of proper provision, all property, no matter how the parties obtain it, is available to be considered by the Court in the distribution of assets.

3. Is the family business a valuable asset?

The value of the business in the overall division of the marital pot is important to determine. It is best to obtain a formal valuation of the family business.  If the family business is the main asset in the marital pot, the key will be to extract value from the company to enable proper provision for both parties without having a negative impact on the company’s long-term ability to carry on. There is no set way to do this and ultimately, it is a balancing act for the Court to undertake. Courts are reluctant to interfere with the smooth running of a business or making changes to its ownership but the business will be part of the marital pot if it forms a significant asset of the marriage.  As always, the key priority is to focus all minds upon agreement rather than conflict.

Family businesses and divorce settlements contain a plethora of complex legal issues. Wolfe & Co LLP are here to assist you to reach a solution that both parties can live with and to ensure the family business can continue to flourish.

 

By Aislinn Collins Solicitor.

 

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

 

March 2023 Wolfe & Co. LLP Solicitors

If you are going through a divorce, “proper provision” is a term that you will hear umpteen times. Your solicitor will say it, your barrister will say it, the Judge will say it. “But what does it mean?” – clients ask on a daily basis. Proper provision is the test which the Family Law Courts must apply when making decisions in the context of a divorce or judicial separation.

One of the first things that any family law solicitor will do when consulted by a new client, is write down all of the assets and liabilities which the separating couple have, combined. This is known as the “marital pot” and will usually include a family home with a mortgage, pension policies and cash. The marital pot is what is available for distribution between the separating couple. Proper provision is not a case of who contributed “more” to the marriage but rather what is now appropriate and available for division for the separating couple.

The concept of proper provision is a very difficult one considering no two marriages are the same and therefore no two divorces will be the same. The Family Law Courts, in weighing this up, must look at a wide variety of factors such as income/income earning capacity, accommodation needs, reasonable expectations of standards of living into the future, length of the marriage, ages and needs of any children, any mental disabilities, whether a sacrifice to a career should be taken into account and any statutory benefits either are entitled to.

It is ultimately a matter for the Courts to decide what is fair and reasonable taking into account the various factors they must look at and also the contributions and sacrifices that each party has made in relation to the marriage. This is never an exact science and will be determined on the different facts and circumstances of each case.

Therefore, the Court must perform a balancing act in terms of the fair division of the marital pot. It is important to note that the concept of “proper provision” does not constitute a redistribution of wealth. The priority for the Courts is that of the ultimate welfare of the separating couple. The Court will generally try to ensure that both parties’ accommodation needs are secured and that there are sufficient funds to protect each party and any dependent children into the future.

Your family law solicitor can really support and assist you throughout this process. If both parties engage a specialist solicitor, it allows for the possibility of negotiating with your spouse through your respective solicitors. Once you have opened the possibility of negotiations, you can have a hand in how your marital pot is ultimately divided as opposed to a Judge making decisions on your marital pot and on your future.

This is undoubtedly a stressful and tumultuous time in your life. Wolfe & Co LLP Solicitors are here to assist you along every step of the way into the next phase of your life.

 

By Aislinn Collins Solicitor.

 

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

 

February 2023 Wolfe & Co. LLP Solicitors

 

Aislinn Collins, who has been with the firm since 2017 and who many of our clients will already know, has been admitted to the Roll of Solicitors.

Aislinn graduated from the University of Limerick with an honours degree in Law Plus in 2015. She continued to study and achieved a post-graduate honours degree in Law from University College Cork in 2015/2016. Aislinn began working as a Legal Executive in Wolfe & Co LLP in 2017 where she gained a variety of experience throughout the firm. Aislinn moved to Sydney, Australia for 2018 and 2019 where she gained invaluable experience in various legal firms working in Family Law and Litigation. She was then indentured to our current Managing Partner, Helen Collins and qualified as a solicitor in 2023. Aislinn specialises in all aspects of Family Law and Civil Litigation.

It is well reported that divorce levels in Ireland, post-pandemic, reached a record high. Even more widely reported was the record high reached by the property market in Ireland, and in particular in West Cork. The Family Law Court has a constitutional obligation to ensure “proper provision” for separating families and the Court’s main priority is that both parties to the marriage are properly provided for. This requirement can often be prioritized above all else including finances relating to the children – the rationale being, if mom and dad are not properly provided for, how can the children be properly provided for.

The Family Home

In most divorce matters, one of the main and most important assets of the family is the family home. The Court has a wide discretion in terms of the Orders that it can make in respect of this valuable family asset.

There are generally two main options for separating families in respect of the family home:

1. Sell the home and split the proceeds.

The current upswing in the property market in West Cork has been of assistance to many separating families if a sale of the home is agreed and the net proceeds split. If there is a relatively low mortgage on the property, high market prices have ensured that both parties receive sufficient funds from their share of the net proceeds with perhaps some additional borrowings, to allow them both to be re-housed post-divorce.

2. One spouse can buy out the other.

The strong property market has somewhat hindered other families in this respect. A buy-out tends to mean one spouse must come up with at least half of the net value of the house. As of last year, the average house price in Cork County was approx. €300,000 meaning at least €150,000 must be raised by one spouse. These funds tend to come from a loan, a second mortgage or family assistance. Clearly, third party assistance is needed in most buy-out options.

Of some concern to separating families is if a buy-out sum is agreed and then subsequently these agreed funds cannot be raised due to a possible future downturn in the economy. We can never predict with any great certainty just when a downturn will hit and so this is somewhat of an unknown commodity to add to the metaphorical pot. Due

to any change in finances, the funds to pay the lump sum may not be available and unfortunately, one can’t force the payment of funds that are simply not there. During the last recession, such circumstances forced so many families to stay together as people simply could not afford to divorce.

The Rental Market

An additional unseen worry for some separating families, is the current rental crisis. A buy-out situation generally leads to one spouse needing to rent a property. If there are children of the marriage, the spouse who has moved out of the home, would ideally wish for their new home to be close to the children to facilitate access ad be sufficiently large to accommodate the children comfortably. As of last year, the average rental price for a house in Cork County was approx. €1,200.00 per month. This can be exceptionally financially difficult on both spouses.

Agreeing to agree

A huge benefit to consulting a family law solicitor is the ability to successfully agree to agree. Agreeing to agree can save the separating family a lot of heartache, stress, time and more importantly money. Consulting with a specialist solicitor allows you to see exactly what it is you are likely to face if you separate. More importantly, seeking to find an agreement with your spouse allows you to have more control over your life, post-divorce. The Irish Courts are very willing to honour an agreement between spouses where both spouses have had the benefit of independent legal advice and proper provision has been made. Accordingly, the divorce process, when properly negotiated, does not need to be adversarial.

Family law can be a minefield and hugely stressful and distressing. Wolfe & Co LLP Solicitors are here to support you and to help you negotiate and navigate your way towards your new future.

 

By Aislinn Collins Solicitor.

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

 

January 2023 Wolfe & Co. LLP Solicitors