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