Property Clinic: The surrender of property requires consent or a court order
My ex-husband claims he inherited property from his late mother. She was kind enough to loan us the money to buy the property, under the terms that we paid her back. We repaid part of the loan to her, but she died six years later. Both our names are on the deed. His claim to having inherited the property was made in the Circuit Court, when we were separating. In 2015 he contested his mother’s will because she left her entire estate to her sister. Do I have to sign away my ownership of that land to my ex-husband?
William O’Connor writes: You refer to your ex-husband, however unless you have obtained a decree of divorce, he remains your husband, albeit estranged. It is important to note the difference between a divorce and a legal separation. When you divorce, your marriage is formally ended – you are no longer married to each other. When you obtain a legal separation, you remain legally married to each other.
It’s important to note at the outset that no one is obliged to release their interest in property unless they choose to do so by consent, or they are compelled by court order. This property matter ought to have been considered and dealt with in the course of the separation proceedings. If you have not yet obtained a decree of divorce you can deal with them in the course of the divorce proceedings.
When applying for a decree of divorce, the court will review your existing separation arrangements and it will consider any change in circumstances and assets. Both you and your spouse will be obliged to provide an affidavit of means. This sets out each person’s financial position, including assets, income, debts, liabilities and outgoings.
To obtain a decree of divorce in Ireland you must comply with certain conditions. First, you must live apart from one another for at least two out of the previous three years. Second, you must live in Ireland. Third, there must be no reasonable prospect of reconciliation, and fourth, arrangements must be made to look after your spouse and any dependent members of the family.
Proper provision is a concept provided for in law. It is a test which the court must apply when making decisions either in the context of judicial separation or a divorce.
If the court decides you have grounds it will grant a decree of divorce.
On the issue of whether you have to sign away your ownership of that land to your ex-husband, as mentioned, no person is obliged to release their interest in property unless they choose to do so by consent, or they are compelled to do so by court order. If you have further queries in relation to the property you should consult your own legal advisor.
William O’Connor, Solicitor and Partner at P O’Connor & Son, solicitors, Swinford, Co. Mayo.
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