Family Law
Contacting your Solicitor is a daunting first step fro people experiencing difficulties as at times it can be the first acknowledgement that issues need to be addressed. We strive to make that first step easier by listening and advising on all the available options available to Clients.
To ensure the privacy of the many personal matters that are discussed if and when a case is heard in the Court, all family law cases are held in private with only the parties involved, their legal teams and the Judge are present.
Before you attend with your Solicitor:
- It helps to write down what you wish to express
- Be prepared for questions of a personal nature with regard to your relationship
- Remember, once the process starts, it usually takes a life of its own
- If possible, keep a dialogue open with your spouse
Separation Agreements/ Divorce
There are two different ways of getting a separation:
- Separation Agreement
- Judicial Separation.
Separation Agreement/Deed of Separation
A Deed of Separation is a legal written contract that has been negotiated by two spouses which sets out their future rights and duties to each other
- Separation Agreement/Deed of Separation
A Deed of Separation is a legal written contract that has been negotiated between the two spouses which sets out their future rights and duties to each other. The document is signed by both spouses and witnessed once both parties have agreed to all the terms. Both parties obtain independent legal advice and their Solicitors act in the negotiations of the terms of the agreement. - Judicial Separation
If the parties are unable to agreed the terms of a Separation Agreement, either party can seek a Judicial Separation if any of the following factors apply:-
1. One spouse to have committed adultery
2. One spouse to have behaved in such a way that it would be unreasonable to expect the other spouse to continue to live together
3. One spouse to have deserted the other for at least one year at the time of the application for a separation
4. The spouses have lived apart from one another for one year up to the time of the application for separation, and both spouses agree to the separation decree being granted
5. The spouses have lived apart from one another for at least three years up to the time of application for a separation (whether or not the spouses agree to the separation)
6. The court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of application for a separation
A Judicial Separation will only be granted when an order outlining the arrangements for the welfare of dependant children has been made. All Judicial Separations are heard by the Circuit or High Court and are held in private (as are all family law cases).
Also there is the Mediated Agreement
The mediation process offered free by the Family Mediation Service (which is not a legal service) assists separating couples with resolving disputes in relation to children, financial support and other issues. With the help of an independent mediator they will try to reach agreement on how they will manage these when they separate. The mediation agreement is then brought by each party to their Solicitor and used as the basis for the Separation Agreement.
Divorce in Ireland
A Decree of Divorce in Ireland will legally dissolve a civil marriage and allow either party to re-marry.
Before applying to Courts for a Divorce the following conditions must be met:
- The spouses must have been living apart for a period amounting to four out of the previous five years
- There must be no reasonable prospect of reconciliation
- Arrangements for maintenance and the welfare of spouse/ dependent children must have been made
The Courts will only grant a Judicial Separation or a Divorce if it is clear that all routes have been exhausted and there is no possibility of reconciliation.
Before the Court grants either a Judicial Separation or a Divorce, there are many factors to be taken into account. These will include the current and future financial situations of both spouses, accommodation and property, dependent children and their future needs and welfare, succession rights, the behaviour of both spouses, their mental and physical health and so on.
Children & Custody
Children are usually caught in the middle when a marriage is in difficulty or ends.
The guiding principle for all Solicitors and the Courts is that the welfare of the child or children is paramount.
For married couples, the issues will relate to custody and access.
For unmarried parents, as well as the issues regarding maintenance and access the issue of guardianship will also arise.
It is up to the court to decide as to what is in the best current and future interests of the children.
The Courts now recognise that children have the right to enjoy a relationship with both their parents.
Maintenance
Depending on the income and needs of either parent and children, maintenance may have to be paid by one of the parents/spouses. Children under 18 years, or those in full time education, are considered dependants. For the spouse, age, income and ability to take up employment will be considered when the Court calculates the amount payable. The Court will consider the income, liabilities and expenses of both parents/spouses.
If a spouse/parent fails to pay maintenance, an Attachment of Earnings Order can be sought from the Court if the person is employed, on social welfare or on a private pension. The employer/organisation who pays the spouse can be ordered to deduct maintenance from his/her salary/payment.
Domestic Violence
For victims of domestic violence there are several forms of protection available under current laws from the District Court. Some applications can be made directly by the Applicant with the assistance of the District Court Office Staff. Sometimes however, the assistance of a Solicitor can aid matters:
The following are the forms of protection available through the District Court.
Safety Order
This simply prohibits a person from using or threatening violence towards the person applying for the order and/or the dependent children.
Barring Order
This requires a person against whom the order is made, to leave and stay away from the place of residence of the person applying for the order and/or the dependent children.
Protection Order
This is a temporary safety order. A court may make this order when a person applies for a safety order and/or barring order. This only lasts until a the full court hearing of the safety/projection order.
Interim Barring Order
This is a temporary barring order and lasts until a the full court hearing of the safety/protection order.
How long can you be protected?
The District Court can make a Safety Order for a five year period and a Barring Order for three years. This can be reviewed.
Who can obtain protection?
- Spouses against each other
- Cohabiters
People who are not married but living together, may seek protection against each other, if they have been living together for the requisite period.
- Parents
They may seek protection against their children over the age of 18 years. However, a court will not grant a barring order against a child who owns the place of residence or who has greater ownership rights than the parent seeking protection.
- People sharing a home
The person against whom the protection is sought must be over the age of 18 years. However, the court will not grant protection if it considers that there is a contractual relationship between the people. A safety order is the only protection available here.
- Children
An adult, parent or a Health Board must apply to the court on their behalf.
What happens if an order is breached?
If someone breaches any order made under the domestic violence legislation, then it is a criminal offence and they can be arrested.
Family Home and Property
All property owned by either spouse, will be taken into consideration in separation/divorce proceedings.
A spouse is prevented by law from selling, mortgaging, leasing or transferring the family home without the consent of the other spouse. This helps to protect the person whose name is not on the Title Deeds. For local authority homes, usually both spouses are on the lease and in the case of a separation/divorce, he/she can apply to be re-housed.
In many circumstances, the right to live in the family home is usually enjoyed by the parent who is given day to day care and control of the children.
However, the property rights and accommodation needs of both spouses will always have to be taken into account and every case is different and will therefore be assess on its own merit. There is no golden rule which governs how the Courts will treat every family home.
