Affidavits

AFFIDAVIT OF MEANS

In any case where financial relief is sought the parties shall file Affidavit of Means setting out details of the party's income, assets, debts, expenditure and other liabilities.

Section 38 (6) of the Family Law (Divirce) Act, 1996 states:

 "In proceedings under section 13, 14, 15(1)(a), 16, 17, 18 or 22

 (a) each of the spouses concerned shall give to the other spouse and to, or to a      person acting on behalf of, any dependent member of the family concerned, and
 
 (b) any dependent member of the family concerned shall give to, or to a person           acting on behalf of, any other such member and to each of the spouses concerned

 such particulars of his or her property and income as may reasonably be required for  the purposes of the proceedings"

and Sub Section (7) states:

"Where a person fails or refuses to comply with subsection (6), the court on  application to it in that behalf by a person having an interest in the matter, may direct the person to comply with that subsection".

The majority of divorces seek only one order of those listed above, that is an order under Section 18, Sub-Section (10) which is a blocking order preventing a spouse from seeking provision from a deceased spouse's estate.      

Some legal text books refer to an order under Section 18 (10) as not being a “financial” relief order and therefore not requiring an Affidavit of Means. However practically all Circuit Court Offices seek the submission of an affidavit of Means by the Applicant.

The Circuit Court Rules, 2001, Rule 7 (a) declares that a Family Law Civil Bill shall be served on the Respondent…..together with…..an Affidavit of Means.

The filing of an Affidavit of Means should not be treated lightly as it is and will be a court record of a person's financial position at that given time. If circumstances were to change with either party i.e. ill health, unemployment, a win on the lottery or evidence of assets not declared etc either party can return to the court even after divorce for relief. It is important therefore that the data filed is accurate and truly representative of the Applicants position.

It is not recommended for instance, that you show your income as €700 per week and your weekly expenditure at €300 unless this is the truth. Otherwise you invite an examination of your means so as to ensure your spouse also shares a similar standard of living i.e. a surplus of €400 a week.

It should be remembered that either party can make an application to the court for an Order of Discovery and either party can request the other to vouch any or all items referred to.  Indeed in cases where the parties do not agree the County Registrar may insist on the vouching of all financial information.

Finally we refer to High Court case, K. (A.) v K. (P.) {2000} 1EH C 24, 13th March 2000. The judge remarked on the Applicants Affidavit of Means. He stated “While I accept that the Applicant has had to borrow in order to renew her car and in order to pay arrears of rent on occasions, her bank statements show normal and only occasional overdrawings. No evidence was adduced as to cheques paid in relation to the weekly outgoings. The roundness of the figures of the outgoings would seem to suggest some exaggeration rather than an accurate analysis of bills paid. Moreover, there may be some elements of double counting, for example, in the oil and fuel at €40 per week”.

AFFIDAVIT OF WELFARE

An Affidavit of Welfare is required in all cases where there are dependent children as per rule 7 (a) Circuit Court Rules 2001.

The Circuit Court Rules in relation to service of any Family Law Civil Bill refers to “any dependent children of the marriage". The Form 37B which sets out the format for the Affidavit of Welfare refers to “details of children born to the Plaintiff and the Defendant or adopted by both the Plaintiff and the Defendant”. Further on it refers to “arrangements for the children of the family”. It would appear therefore that an Affidavit of Welfare is not required by the Applicant for any children born to him/her from another relationship.

However under the Divorce Act he/she must make provision for these children as dependent member of the family is defined in relation to a spouse, or the spouses, concerned, means any child of either or both spouses or adopted by either or both spouses or in relation to whom either or both spouses are in loco parentis (acting as a parent).

A child remains dependent if he/she is under 18 years or if the child has attained that age is receiving full-time education or instruction at any university, college, school or other educational establishment and is under the age of 23 years. A child also remains dependent regardless of age if it has a mental or physical disability to such extent that it is not reasonably possible for the child to maintain himself or herself fully.

Many Applicants are quite rightly reluctant to send an Affidavit of Welfare to their spouse concerning details of their children from another source. For our part we will supply an Affidavit of Welfare for any children from whatever source as directed by you the Applicant. We are simply pointing out the requirements as we see and understand them.

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