Equal asset split unsuitable if livelihood at stake
A recent High Court family-law case has set out clear principles on the division of assets, writes family-law solicitor Keith Walsh SC (pictured).
Judge Jackson, the High Court family-law judge, in her decision of JKM and LM [2026] IEHC 72, published on 11 February, set out in the clearest terms that equal division of assets was not appropriate in this case.
Income-generation characteristics
This was due to the provenance of the assets and the income-generation characteristics of them, namely that the husband’s income was dependent upon them.
Proper provision, rather than asset-division percentages, is the objective to be achieved for both spouses.
Although this case was a judicial separation rather than divorce, the same principles would apply on divorce.
This judgment is incredibly clear and designed to be read not just by lawyers, but by all those interested in asset division in matrimonial cases.
It is clear and easy to understand.
The parties were married in 2006 and separated in 2023; they were aged around 50 and had three children – aged 17½, 16 and 14.
Conduct by either party was not an issue.
In this case, the total net assets were approximately €6 million, of which the family home was €1.359 million.
There were residential properties with net value of €431,100, ex CGT, purchased by the wife pre-marriage and held in her sole name.
There was also a property in the sole name of the husband net value €335,000, ex CGT.
A substantial agri-business company owned lands and business premises, and was formed by the husband and his father in 2002 and now valued at €2,690,154.
In this, the wife owned 15% and the husband 85% of the shareholding.
There were also miscellaneous assets of €406,000 and pensions of approximately €454,000.
The wife received €30,250 gross from the business annually and the children’s allowance, while the husband received €78,000 gross.
Lifestyle financed by asset disposal
Their lifestyle had been financed by a variety of lump-sum amounts from asset disposal over the years.
Judge Jackson found that this lifestyle was now unsustainable now due to the necessary division of assets as part of this judicial separation.
Jackson J considered two circumstances as important:
- Provenance of the assets of the family,
- Income-generation characteristics of some of the assets, which were essential to the carrying on of the business from which the husband derives his income.
The wife was seeking a 50:50 split of the assets.
However, Jackson J found that “assets derived from outside the marriage (inheritance, gift, pre-marriage, post-separation assets) are considered to be of a somewhat different character.
Calibrated approach
“It is not that they cannot be availed of to make proper provision, if required, but a more calibrated approach to them is required.
“Can proper provision be made without them or with limited intrusion upon them? The consequence of this is that in many (if not most cases) some, possibly substantial, regard for them will be needed to achieve proper provision.
“The extent of such is likely to be less in ample-resources cases and especially so where there are such resources accumulated during the marriage,” the judge said.
In this case, the judge ordered the sale of the family home and lands, net value €1.359 million, and the proceeds to be paid to the wife at the end of the current school year.
The wife’s 15% shareholding of the agri-business company held in her sole name is to be sold or retained at her discretion.
The wife is to retain her residential property, which was already held in her sole name, which the judge intended to provide a secure income which could be supplemented with the wife working.
The wife was to continue to be employed by the business until the family home was sold, and she was then to receive a termination payment of €36,000.
No order for spousal maintenance was made, but €2,000 per month child maintenance, divided equally among the three children, plus additional extras, was awarded.
A €100,000 lump sum is to be paid by the husband to the wife within six months.
Miscellaneous other assets such as horses, car, and jewellery were apportioned to the wife, who is also to receive €266,297 of the husband’s pension by pension adjustment order, leaving him with €162,504 of the pension pot.