family law(divorce)act 1996 | Terry Gorry & Co. Solicitors

Divorce in Ireland is provided for by the Family Law (Divorce) Act 1996 which allows both the Circuit Court and High Court to grant decrees of divorce.

The Circuit Court only has jurisdiction to grant a divorce decree where the property concerned has a market value of less than €3M.

Grounds for divorce

The grounds for divorce under the Family Law (Divorce) Act 1996 are threefold:

I. When divorce proceedings commence, the parties must have lived apart for at least 4 of the previous 5 years (where this occurs and a couple have lived together for a short period(s) of time to attempt to reconcile, a divorce decree can still be granted)

II. There is no reasonable prospect of reconciliation (the Court must be satisfied on this ground)

III. The Court must make proper provision for the spouses and any dependent members of the family (a dependent member of the family includes children born to both spouses, or one spouse if adopted by both spouses or by one spouse, or to whom either parent is ‘loco parentis’)

(This is part of the family law series)

You will see from the above conditions that “fault” on the part of one or other party is irrelevant and it is worth noting that “living apart” is possible in the eyes of the Courts even if the parties are living under the same roof.

This will require considerable proof for the Court though before a decree is granted and it is important when having deeds or agreements of separation drawn up that they specify when the parties have commenced living apart.

The notion of living apart has been considered in some detail by the Courts and it has been held by the High Court that where a couple claim to be living apart, even though under the same roof, the court will only decide this issue based on the circumstances of each case.

‘Living apart’ has been held by the Courts to be a ‘state of affairs’ rather than just a physical living apart and the converse is also true: a couple could be living apart even though living under the same roof.

It is important therefore that when couples are having deeds of separation drafted that it states clearly the date on which they started living apart.

It is noteworthy too that any correspondence, written or oral, involving attempts at reconciliation or mediation with a third party is not admissible as evidence in Court.

Effects of divorce decree

The principal effects of a divorce decree in Ireland are

i. The marriage is dissolved and both parties are free to remarry

ii. The rights of both parents to continue to be joint guardians of children of the union continues

iii. A divorced person is no longer a spouse and does not continue to enjoy the benefits of the Succession Act 1965 or the Family Home Protection Act 1976

iv. There are tax implications

v. A decree of divorce does not prevent either spouse from being entitled to a widow/widower’s pension or the one parent family allowance or the deserted wife’s allowance and benefits.

Just as in Judicial Separation proceedings both parties must be advised by their solicitors to discuss the possibility of reconciliation, mediation and an agreement in writing between the parties rather than court proceedings.

These obligations on a Solicitor are legally binding and if not carried out neither a Judicial Separation decree or one of divorce will be granted by the Court.

Divorce and Judicial Separation Procedure in the Circuit Court

Both the Circuit Court and High Court have jurisdiction to hear applications for divorce and judicial separation. However any case where the assets are less than €5 million should be heard in the Circuit Court.

Family Law Civil Bill

All proceedings for divorce, judicial separation, relief after foreign divorce or separation outside the state, declarations of parentage, declarations of marital status, nullity are commenced by issuing a Family Law Civil Bill in the County Registrar’s office of the appropriate County. This choice of venue can be the county where either party to the proceedings ordinarily resides or carries on business.

Every Family Law Civil Bill must set out the relief being sought and the grounds relied on for seeking that relief. It must contain certain information such as the date and place of marriage, the length of time the parties are living apart, details about any children of the marriage, information about the family home and any other property, the occupation of the parties, etc.

The Family Law Civil Bill, along with a section 5 or 6 certificate, an affidavit of means and affidavit of welfare (where appropriate) are filed in the Circuit Court office and then served on the other party.

Appearance and Defence

The respondent then has 10 days within which to enter an appearance and a further 10 days to enter a defence as well as an affidavit of means and an affidavit of welfare. However these time limits are unrealistic and further time will be taken in practice.

Fast Track Divorce

The Circuit Court Rules do provide for a “fast track divorce” where both parties are agreed in relation to all of the reliefs being sought. This involves the respondent filing a “consent defence” and an application to Court for a judgment by consent.

There is also the possibility of simply obtaining a decree of divorce where no ancillary relief is sought.

Trial

Once all pleadings have been exchanged a notice of trial is issued and served and a date will be fixed for the hearing of the case.

Affidavit of Means

Where financial relief is being sought by one of the parties, the rules provide for each party to file an affidavit of means.

However in Dublin in where no financial relief is being sought, an affidavit of means is not required by the Family Law office.

An affidavit of means is divided up into 5 schedules listing

The assets of the party
The income
Debts and liabilities
The outgoings of the party
Any pension scheme which exists.

Affidavit of Welfare

An affidavit of welfare must be sworn and filed where there are dependent children.

The affidavit of welfare must give details of children born to the applicant and the respondent or adopted by them and details of other children of the family or to which either of the parties stand in loco parentis.

Interim Applications

Interim applications can be made by either party by way of notice of motion and affidavit.

Costs

The Court can make any order it sees fit as regards costs.

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Separation agreements in family law in Ireland are agreements drawn up by the parties to a broken down marriage who wish to avoid the Courts to resolve their differences.

Terms of separation agreements

Most separation agreements will deal with an agreement for the parties to live apart and further matters commonly covered will include access to children if any, maintenance, custody, division of property and any other relevant matters that the parties wish to commit to writing.

The agreement to live apart should contain a date when this will commence as this date will be important if either party wishes subsequently to obtain a divorce.(This is part of the family law series of articles)

Non molestation

A common clause in separation agreements is a “non-molestation clause” which simply prevents the disturbance or annoyance of one party by the other after execution of the agreement.

Custody and guardianship

The issues of access and custody where there are children under 18 are important matters to cover and agreement may have been agreed between the parties about sole or joint custody.

Matters in this section may also deal with bringing a child abroad and out of the jurisdiction and detailed arrangements for access.

Remember that even where parties separate both married parents remain joint guardians of children under 18.

Property

Matrimonial property is obviously a big issue to be dealt with in separation agreements. Common situations include one of the parties staying in the family home, perhaps until children reach the age of 18, and then the home being sold and proceeds split.

An alternative is for one party to buy out the other party’s interest in the property and become the sole owner on payment of an agreed lump sum.

Maintenance

A separation agreement should make provision for the payment of maintenance by one spouse to another and this will normally be the subject of extensive negotiations.

The existence of agreement in relation to maintenance does not prevent a spouse from going to the District court to seek a maintenance order under the Family law act, 1976. However the Court will consider the existence of the separation agreement terms which deal with maintenance in any order it might make.

Other matters that might be considered for inclusion in any separation agreement include

Taxation-the receipt of maintenance by the custodial parent is taxable so the question of election to be taxed as a single person or jointly might be considered. The receipt of maintenance designated for the support of children is not taxable though.
Succession rights-the parties may renounce their succession rights to their share of the estate of the other party under the Succession Act 1965
Pensions-pensions in a separation agreement can be a complex issue and you would be well advised to take taxation advice if the pension is substantial
An indemnity-most agreements will have a clause which indemnifies each party against any debts subsequently incurred by each party.

The separation agreement can be made a rule of Court-the advantage of this is that any failure to uphold the agreement can be remedied by going into Court for a contempt of Court ruling. In addition any maintenance payments can be made through the District Court clerk which will afford a greater degree of security when it comes to enforcing any failure to pay.

Separation Agreements and Future Legal Proceedings

As a separation agreement is a binding contract, subsequent judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 are not possible.

This means that a spouse is precluded from seeking the extensive range of financial and property reliefs available under the Family Law Act, 1995. A pension adjustment order is also out of the question as this is granted under the Family Law Act, 1995.

Separation Agreements and Divorce Proceedings

However a separation agreement is not a bar to subsequent divorce proceedings under the Family Law (Divorce) Act 1996 and in deciding upon divorce proceedings the Court will have to “have regard” for the terms of any separation agreement.

The difficulty can arise though where divorce proceedings are brought some time after the separation agreement has been entered into and the financial fortunes of either or both parties have changed significantly.

In K v K [2003] High Court decided that the Court had to decide what was “proper provision” at the date of divorce, not the date of the separation agreement and this can lead to a significant redistribution of the assets.

In circumstances where the separation agreement precedes the divorce proceedings fairly recently in time then there probably will not be any reason for a significant departure from the provisions of the separation agreement (unless of course there has been a material change in financial circumstances of the parties).

In M.P. v A.P. 2005 High Court the Court held that the weight to be placed on a Judicial Separation Consent Agreement in divorce proceedings will depend on

The length of time since agreement was reached;
The financial background pertaining to the Consent Agreement;
The reasonable expectation of the parties.

If your marriage has broken down you should consult a solicitor who will explain the various options open to you and any pitfalls to avoid.