Look forward, not back, when dividing assets in divorce

“Four Courts” by Giuseppe Milo (pixael.com)

A recent High Court judgment in a divorce case highlights the need for practicality, reasonableness and a focus on “proper provision” in dividing family assets. It is also a reminder that there is no rule about a percentage split of assets or ring-fencing of assets.

The case (I.J. v K.J. [2026] IEHC 623) was an appeal from orders made in the Circuit Court and resulted in a considered judgment by Ms Justice Nuala Jackson.

There were a number of striking elements to the dispute, including that the Respondent, despite having a professional qualification, largely did not work outside the home. He did have a diagnosis of a neurodivergent condition of “relatively recent origin”, but nothing which, as far as the court was concerned, justified not working outside the home.

He further appears to have envisaged that his former wife, who also had qualifications and continued to work throughout while also caring for the children, would keep working until the age of 70, despite having no apparent intention to do so himself. Reference was made to around €150,000 spent sending the parties’ children to boarding school abroad “due to a disagreement on the part of the Respondent over a trivial sum of money owed to a sporting body”.

There was an apparent level of acrimony and controlling behaviour in the relationship, and a “dogged” approach on the part of the Respondent to many issues, which appears to have continued into the court proceedings. The judgment makes clear how this has resulted in an overall cost to the entire family.

Key from the judgment, however, is the focus on “proper provision”, which is often misunderstood or lost as parties navigate the end of a marriage. Divorce in Ireland is on a no-fault basis and, by and large, for most couples this will mean that the primary issue is the division of assets, including cash, investments, pensions and the family home. There is no 50/50 rule for the division of assets in Irish law. Nor is there a rule that assets must be ring-fenced on the basis, for example, that a particular property was bought by one party before the marriage or inherited during it.

The goal is to divide assets in a way that, in so far as it is possible to do, makes proper provision for the parties into the future. Indeed, it is a constitutional and legal requirement to do this when granting a divorce. The meaning of “proper provision” is not actually defined by the law but there are principles that guide a division, including the income and earning capacity of the parties, their financial needs and obligations, health issues and age and more complex issues like the standard of living of the family before separation.

When it comes to assets that were individually owned, if it is possible to make proper provision allowing a party who inherited a house to keep that house, then that will generally be done. However, if the other assets are not adequate to make proper provision when divided, then the inherited house in that example will be called on.

In relation to cash assets the position will often be less certain. A cash sum or investment may have been intermingled during the course of the marriage through withdrawals and further contributions. Indeed, an investment property inherited by one party may have been improved or managed with the benefit of joint funds.

The judgment highlights and reaffirms some key principles relating to proper provision:

• Proper provision does not mean a division by any particular percentage. It does not involve an analysis of the past only but must also have regard to the future.
• All assets must be considered. Pre-marital and inherited assets may be dealt with differently, but are not ring-fenced.
• Proper provision is the role of the court, not to “punish” any party or be “revisionist”. Parties to a case should be sensible and pragmatic and be interested in “advancing the overall betterment of the family”, rather than being “more focussed on being right”. As Jackson J put it: “My task is to make proper provision. It is not my function or purpose to punish or to be revisionist.”

For anyone facing separation or divorce, keeping these principles in mind from the outset can help focus discussions on a fair and workable outcome for the future, rather than on costly disputes about the past.