John G. Murphy
Marital breakdown affects all aspects of a person’s life. It is vital to consider these effects in a legal context. At John A. Sinnott & Co. Solicitors, Wexford; we will guide you through the options available and be there to assist you every step of the way, whatever route you chose. Should it be necessary to go to court, be assured that all family law cases are heard in private .
A legal separation can occur in two ways:
An Agreed Separation
If possible, it is best for both parties to put the bones of an agreement together initially. In many instances, both parties go to a Mediator to assist with this, as it is more cost effective than dealing with two firms of solicitors from the outset. Each party’s solicitor will then put the mediator’s agreement into legal format and prepare documents for all necessary property transfers and adjustments. The agreement is a legally binding contract setting out each party's rights and obligations to the other.
The actual document drawn up and signed by both parties, when agreement is reached, is called a Deed of Separation. The main issues dealt with in a Deed of Separation are usually:
- Agreement to live apart
- Arrangements in relation to custody and access to children
- The occupation and ownership of the family/shared home and any other property
- Maintenance and any lump sum payments
- Indemnity from the debts of the other spouse/civil partner
- Succession rights
- Pension adjustment
It can be made into a rule of court by application to the court. This ensures that all the terms agreed upon can be legally enforced where covered by appropriate legislation.
A Separation Agreement does not dissolve the marriage nor does it allow for remarriage.
A Judicial Separation
If one spouse refuses to cooperate in putting a separation agreement together, then the other spouse can make an application to the Court (usually the Circuit Family Court) for judicial separation i.e. a separation by court order.
An application for a judicial separation must be based on one of the following six grounds:
- One party has committed adultery
- One party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them
- One party has deserted the other for at least one year at the time of the application
- The couple have lived apart from one another for at least one year at the time of the application for the decree. The Family Law Act 2019 also provided a new definition of the term ‘living apart’ (see ‘Living Apart’ below).
- The court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of the application for the decree.
The last is by far the most common ground on which the decree is granted, as neither party has to be shown as being at fault.
The court must be satisfied that:
- The grounds for the application exist.
- The couple has been advised about counselling and mediation.
- Proper provision has been made for the welfare of any dependants
If it is satisfied, the court will grant a decree of judicial separation. The court may also make orders in relation to the issues usually dealt with in a Deed of Separation as outlined above. Again, a decree of judicial separation does not dissolve the marriage nor give the right to remarry.
The Constitution sets out 4 pre-requisites to apply for divorce in Ireland.
1) There is no reasonable prospect of reconciliation between the spouses.
2) Either spouse must be living in Ireland when the application is made or, either spouse must have lived in Ireland for at least the 1 year period before the application is made.
3) Couples must have lived apart for 2 years during the previous 3 years.
4) Proper provision is or will be made for each person and dependent members of the family.
The Family Law Act 2019 provided a new definition of the term ‘living apart’. It clarifies that spouses who live in the same house as one another are considered to be living apart if the spouses are not living together as a couple in an intimate and committed relationship.
At John A. Sinnott & Co. Solicitors, we see instances like this very often now. Many couples who are separated and seeking to divorce cannot afford to upkeep two separate houses and so, live separately within the same house.
In determining what is ‘proper provision’, each case will be examined on its own merits. As solicitors, we will take a sensible approach aiming to strike a balance between protecting our clients’ assets and making sure that children and the other person is properly provided for. When deciding what is proper provision, the courts will look at things such as:
- The income and earning capacity and financial resources of both spouses.
- The financial needs, obligations and responsibilities which each spouse has or is likely to have.
- The standard of living of the spouses before the proceedings.
- The age of the spouses and the length of their marriage.
- Any physical or mental disability of the spouses.
- The contribution, which each of the spouses has made or is likely to make to the welfare of the family.
- Whether the earning capacity of either of the spouses has been affected by the marriage.
- The conduct of each of the spouses. This is rarely significant in Court.
- The accommodation needs of either spouse.
- The benefit (e.g. under a pension scheme) which one of the spouses may forfeit by virtue of the divorce.
- The rights of any third party affected by the divorce.
Deciding on ‘proper provision’ often causes the most stress for separating couples and an area where acquiring experienced sound legal advice is very important.
Either party to a marriage may make the application for a decree of divorce to the Circuit Court. The person making the application is the applicant and the other spouse is the respondent. Where both parties are in full agreement about the terms of the divorce, it is known as divorce by consent. If the divorce or any aspect of the terms are not consented to, the objections will be heard at the court hearing and court orders made.
Once the court is satisfied that there are grounds for a divorce, and that proper provision applies,it will grant a decree of divorce. This dissolves the marriage and allows both people to remarry.