Marriage Breakdown Legal Advice
Contacting your Solicitor is a daunting first step for 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 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 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
Under Irish law a couple must be seperated for at least four out of the previous five years before either spouse can apply for a Divorce.
There are two types of seperation agreement available in order to regulate matters between both parties until such time as a divorce can be sought.
- Seperation Agreement
- Judicial Seperation
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.
If the parties are unable to agree the terms of a Separation Agreement, either party can seek a Judicial Separation if any of the following factors apply:-
- One spouse to have committed adultery
- One spouse to have behaved in such a way that it would be unreasonable to expect the other spouse to continue to live together
- One spouse to have deserted the other for at least one year at the time of the application for a separation
- 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
- 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)
- 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).
In circumstances, where the parties have been seperated for at least five years and have lived apart for at least four of the preceding five years, a divorce may be sought.
The grounds for divorce are set out in Article 41.3.2 of the Constitution and are reflected in s.5 of the Family Law (Divorce) Act 1996. These are:
- The parties have lived separate and apart for four out of the last five years.
- There is no reasonable prospect of a reconciliation between them.
- That proper provision has been or will be made for the spouses and the children.
The obligation to make proper provision for children is confined in the 1996 Act to dependant children and a child is generally considered to be dependant until he or she reaches 23 years of age or finishes in fulltime education, whichever is the earlier.
On granting a divorce the Court must make proper provision for the spouses and any dependant children. When determining what constitutes proper provision the Court must have regard to all the circumstances but in particular certain factors which are set out in the relevant legislation, the Family Law (Divorce) Act 1996.
The main factors which are taken into account are the following:
- The amount and nature of the assets of the parties.
- The amount and nature of the income of the parties.
- The needs of the parties and of their children.
- The length of the marriage.
- The contributions which each party has made to the marriage, for example by working either within or outside the home
- The standard of living enjoyed by the parties prior to separation.
- The health of the parties.
- Any benefits to which either party may be entitled.
- The conduct of the parties if it would be contrary to justice to ignore such conduct.
- The rights and interests of third parties.
The court makes proper provision for the spouses and any dependant children by way of ancillary orders, the most important of which are the following:
- A Periodical Payments Order – this requires a spouse to pay a certain amount per week or per month in respect of the other spouse and/or any dependant children. Children are considered to be dependant until they reach 23 years of age or finish in fulltime education, whichever is the earlier.
- A Secured Periodical Payments Order – this is the same as a periodical payments order except payment is secured against a fund or a property which can be drawn upon or sold if there is default in payment.
- A Lump Sum Order – This requires a spouse to pay a lump sum or lump sums to the other spouse in respect of himself/herself and/or any dependant children.
- A Property Adjustment Order – This directs a spouse to transfer a property or properties to the other spouse and/or dependant children
- A Pension Adjustment Order – This requires a spouse to transfer all or sum of a pension to the other spouse. The order can cover not only a pension paid after retirement but also a benefit payable in the event of death prior to retirement
- A Financial Compensation Order – This requires a spouse to put in place or to maintain in place an insurance policy in favour of the other spouse. This can sometimes be used to ensure that a spouse and/or children are properly provided for in the event of the death of the other spouse
- A Custody or Access Order – This is an order directing who is to have custody of the children and what arrangements are to be in place in regard to access to them
- An Order in regard to Succession Rights – Following judicial separation the court can direct that the right of one or both spouses to an automatic share in the estate of the other should be extinguished and can also direct whether a spouse should be allowed to seek provision out of the estate of the other. Following divorce the right of a spouse to an automatic share in the estate of the other is ended but the court can direct whether a spouse can seek provision out of such est
In this country both the Circuit Court and the High Court have power to deal with divorce cases. Most are brought in the Circuit Court, other than cases where there are very considerable assets or income, which are termed “ample resources” cases.
For legal advice in relation to Marriage Breakdown please contact us:
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