Separation and Divorce are traumatic life events and an extremely stressful time for those going through a relationship breakdown, especially when children are involved. Although obviously everybody’s circumstances are unique, set out below are some helpful tips for people who are about to go through a separation:

It will be difficult. Don’t underestimate the rollercoaster of emotions you will have to deal with, even if it is your decision to end the marriage. You will be required to make life changing decisions in relation to your future financial security and, possibly, your relationship with your children. Keep in mind also that matters may take longer to resolve than you first think, particularly if you are at loggerheads and communication has broken down.

Be careful about moving out of the family home. Moving out may be the wrong thing to do from a tactical point of view. On the other hand, it might be the right thing to do from the point of view of peace of mind. Take advice before you make this decision.

If you have children, try to resolve arguments over them without involving the lawyers. You and your spouse will have to work together to meet the needs of your children long after you have parted from your Solicitors, so try to keep them out of it.

Try to resolve disputes over the division of contents of the home between yourselves. Don’t let things get out of perspective. It is usually cheaper to replace an item you’re arguing over than to fight about it through your solicitors.

Make sure you get early legal advice, particularly if there is a jurisdictional issue at stake. It may be that more than one country could have jurisdiction. It is therefore essential that you seek advice as soon as possible – timing will be key when it comes to where you issue your proceedings. Different jurisdictions deal with finances in very different ways so it is important to get it right.

If you move abroad, you can’t necessarily take the children with you. Children cannot be taken out of the jurisdiction without the consent of both parents or the permission of the Court. If you pack up and leave with the children to another country, you may be guilty of a criminal offence and could also be in contravention of the Hague Convention.

Every penny you spend on lawyers shrinks the marital pot you’re fighting over. Separation can be expensive, both in terms of time and money. An amicable separation, including the resolution of the financial issues, may still take a number of months to conclude. A fully contested Judicial Separation or Divorce in which all financial matters are disputed may have serious cost implications depending on the complexity of the case and could take 18 months to get to trial. Don’t flitter away the pot. Legal costs can quickly mount up with needless correspondence passing between Solicitors.

Try to keep hostility to a minimum. The law does not apportion blame and it is only in exceptional circumstances that misconduct is taken into account. Therefore don’t write aggressive or insulting letters or text messages; they will only be shown to the Solicitors who will spend more of your money sorting out the repercussions.

Spend time finding the right Solicitor. You will need to get on with your Solicitor. Also, and very importantly, don’t judge your Solicitor on how much he or she charges per hour; an experienced family law Solicitor who works swiftly to cut to the chase will be more cost effective in the long run then a lawyer who charges a lower rate but may not have the same experience.

Your Solicitor may not be the best person to solve some relationship breakdown issues. Your Solicitor should always be supportive, but there are some issues, for example emotional or relationship issues, where it may be more appropriate to consult a different professional, such as a counsellor or family therapist.

Be open with your Solicitor. Your Solicitor will be able to carry out damage limitation if he or she is aware of all the facts. However if skeletons are pulled from the cupboard in front of the Judge when it is too late for your advisors to deal with them it may severely prejudice your case.

Finally, try to maintain a sensible perspective and a sense of humour. Life goes on after separation or divorce and things will get better once the separation process has been finalised.

Justin Spain

When a couple separate an issue that frequently arises is the issue of inherited or gifted assets. Usually a spouse is anxious to know if inherited assets will be treated as part of the marital assets or whether these assets will be ringfenced as the assets of that spouse only.

The answer is it depends on the circumstances of the case. The legislation does not specifically deal with the issue of how an inheritance should be treated. However, the legislation does allow a Judge to take inherited assets into account in deciding what is proper provision for both spouses following a separation and a Judge has enormous discretion in this regard. So what is the practise of the Courts in dealing with inherited assets?

The leading Irish case in this area was the case of C v C. The main asset in this case was a landed estate which had been inherited by the husband and which had been in his family for generations. The gross value of the assets were over €30 million and the wife was seeking to have the manor house transferred to her. Mr Justice O’Higgins refused to transfer the house to the wife and said:

“The Applicant (husband) has a strong claim to the house. Firstly he is the sole owner. Secondly he has family connections with it for a very long time. Thirdly the Respondent (wife) did not contribute either directly or indirectly to its acquisition as the house was inherited.”

The husband in this case had an after tax income of €750,000 and the Judge awarded the wife a lump sum of €3.3 million to purchase a family home for herself and the children and maintenance of €320,000 per annum for herself and the children. Therefore in “big money” cases the Court is unlikely to give a spouse a significant proportion of the inherited assets of the other spouse, particularly if the inheritance was quite recent.

But what if the case is not a “big money” case? Here the main determining factor is usually the respective needs of the parties and in such cases therefore the Court is more likely to take inherited assets into account when deciding what is proper provision each party. However, a Court must take account of the judgment of the Supreme Court in the recent case of GvG in which the Supreme Court stated that inherited assets should not be considered to be assets of the marriage.

The date when the assets were inherited is also a factor – if the inheritance was received a long time ago it is more likely to be included in the assets to be divided between the parties.

It is therefore important to take advice in relation to inherited assets when a relationship breaks down or indeed when contemplating making a will or getting married.

Neutral citation (2011) IESC 40

Supreme Court

Judgment was delivered on October 19th, 2011, by the Chief Justice, Mrs Justice Susan Denham, Mr Justice John Murray, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Mr Justice Joseph Finnegan concurring.

Judgment

A High Court judgment containing various orders in a family law case, in particular an order of €1 million to buy a second house and €600,000 cash sum, was overturned and the case was remitted to the High Court for proper provision to be ordered.

Background

The case concerned an appeal by the husband against a series of High Court orders in a divorce case, which followed a separation agreement containing a “full and final settlement” clause.

The weight to be given to this clause, and the meaning of “proper provision” in the 1996 Family Law (Divorce) Act were considered.

The couple were married in 1977 and lived in a house inherited by the husband. The wife brought £3,000 in savings to the marriage. They had no children and they ran a farm and garage. The husband began to pursue property development, building and selling houses.

The couple separated in 1995 and entered a separation agreement in August 1996, under which the husband agreed to pay the wife £100 a week in maintenance, reduced to £50 after two years. He also gave her a house in the estate he had developed and a lump sum of £70,000.

In 2004 the maintenance was increased to €1,200 a month, pending a hearing of the divorce application. This was further increased to €2,500 a month by the High Court.

The wife claimed she did not enjoy the same lifestyle as her husband and that she incurred debts until the maintenance was increased.

She brought a claim for divorce and that “proper provision” be made for her under the 1996 Act.

In granting the divorce in March 2009, Mr Justice Henry Abbott made a number of orders making further provision for the wife, including an order directing the husband to buy her an annuity worth €600,000; the payment of €300,000 into a pension fund for her; the payment of €100,000 towards her legal costs; maintenance of €54,000 a year until the sum was paid by the annuity; the payment of €1 million so that she could buy a second house and the payment of a further €600,000 in a lump sum; and a payment of half of the balance of her legal costs.

The husband argued that the orders imposed an unreasonable and unfair financial burden on him, amounting to a confiscation of assets, and that it unfairly fettered his use and control of his assets to the detriment of his long-term financial security and business activity.

He also argued that the High Court judge failed to have sufficient regard to the “full and final” clause in the separation settlement.

His lawyers argued that the court had embarked on a redistributive financial process and that it was not the function of the court to reopen the issue of proper provision, but rather to assess the previous provision in the light of current circumstances and, if it was inadequate, correct it.

Decision

The first issue examined was the weight to be given to the deed of separation and what would happen if there had been a change in the circumstances of one or other of the parties.

The Supreme Court pointed out that previous judgments had stated that the Irish law did not establish a right to a “clean break”, but that this was a legitimate aspiration and the objective of seeking certainty and stability was desirable.

Changed circumstances that could lead to a revisiting of a separation agreement could include illness. However, if a person achieved wealth after the separation, and this was unconnected to any joint project of the spouses, there was no automatic right to an increase in the financial provision for the other spouse.

The standard of living of a dependent spouse should be commensurate with that enjoyed when the marriage ended. Assets inherited should not be treated as assets obtained by both parties in a marriage.

At the time of the High Court hearing, the husbands assets were worth about €21 million.

The original separation agreement envisaged the wife’s needs tapering off and her supporting herself.

However, she became ill and could not work and used up her lump sum. Therefore there was no error in the High Court ordering an increase in maintenance.

However, the overall amount of maintenance and financial provision was excessive and an error, in particular the provision of €1 million for an extra house, as she had been given suitable accommodation in the separation agreement.

The lump sum of €600,000 was also excessive.

The standard of living of a spouse, when the other party has subsequently achieved further wealth, is not entitled to be elevated on that basis. Here the husband did increase his wealth after the separation, which was not relevant to the proper provision of the wife, unless there had been a substantial change in her needs.

In this case her needs were met by her increased maintenance and provision for a pension, which should not be finally determined by the Supreme Court in the light of the dramatically changed values of his assets.

The case should therefore be remitted to the High Court, the judgment said.

The full judgment is on courts.ie

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avid Hegarty SC and Siobhán Gallagher BL, instructed by Micheál Glynn and Co, Limerick, for the appellant; Inge Clissman and Rita Considine BL, instructed by Michael Houlihan and Partners, Ennis, for the respondent.

The Irish Times – Mon, Nov 7, 2011 | Link to article

The Problem

James (45) was married for 15 years but his relationship “ground to a halt” last year. He has three children with his wife, and over the past few years, the strain of debt, unemployment, illness, depression, loss of intimacy “and probably hope” caused friction, and ultimately the break-up.

He concedes the split was also caused by his wife’s inability to fully trust him after an affair that happened several years before. “We both worked very hard to make the relationship work, but called it a day mostly for the sake of the children. They need an atmosphere free of tension,” he says. “I am depressed, which I suppose is normal, but it is hard to wake up alone without the children. Some days it is unbearable.”

He believes he “may or may not be” addicted to the “first rush of love” and admits that he “seeks solutions in the arms and beds of strangers”. He says he “loves women, needs intimacy, needs to make love”. He wonders whether he is afraid of being completely alone.

“People lose themselves in alcohol, work or hobbies . . . I like sex. I regard it as healthy and normal. Other men my age like golf, GAA, the company of other men, football trips. I don’t. I am a loner who prefers the company of intelligent women. However I seem to attract damaged goods, women who have been abused or beaten by parents . . . I wonder why this is?”

James is currently living with a “very supportive” relative and chasing work all over the country while he waits to find permanent accommodation. “The day we moved from the family home I started crying and I have found it very hard to stop,” he says. He is lonely and misses being part of a family. On a positive note, the couple has managed to salvage a friendship from the relationship which feels “genuine, if fragile”. He says the children are happy although his eldest child is confused slightly by the new living arrangements.

He would appreciate advice on how to deal with the “doubt, panic and loneliness” caused by his situation and on how to handle his desire to rush straight into other relationships. “I am a very good father and my ex is a very good mother. I guess we are trying to figure out how to be friends after all these years, but I think we will manage. We are both selfless, and we love our kids too much to make a mess of it,” he says.

James is a daily meditator which he says helps. He has also been in “talk therapy” most of his life, or at least when he could afford it. He comes from a family of therapists and mental-health professionals, a background that has made him “somewhat cynical” when it comes to professionals who offer counsel. He is healthy, fit and says he has retained his sense of humour despite his personal circumstances.

The Advice

The Marriage and Family Therapist

Owen Connolly

I have met men like James many times in my counselling centre. I always ask the questions “As a young boy, were you a sensitive, cautious child. Did you have a close relationship with your mother? Was your father an important person in your life?”

The influence of a mother is to make the perfect prince, but the fther’s role can often be to prepare him for being a king.

If that has not been part of James’s experience, he might be stuck in the prince state, expecting to give himself over to the woman, expecting her to be responsible for his happiness. James comes across to me as an adult child, physically and intellectually grown-up but emotionally still a child.

James, you may present yourself as confident, good-humoured and charming, but underneath you may still be the sensitive cautious young boy wanting to be minded. You are likely to be attracted to strong women with that in mind, but when she shows her needs, thinking that this confident man will empathise and understand, the prince does not know how to cope and considers that it is a sign of weakness on her part. Hence your commentary on women being “damaged goods”. Often, women who have been hurt in childhood will present themselves as strong and confident just as you appear to do. Trauma of any kind can or may be responsible for this condition. You’ll find that a small number of sessions with a good trauma specialist would do a lot more for you than a year of talk therapy and meditation. I can understand your cynicism towards counsellors given your family background. Those who are close to you and well meaning are not always the best people to go to for advice.

I would have confidence in your fathering role as you are likely to give to your children what may have been missing in your own childhood. Make the most of being able to jointly parent the children. As a sensitive man under the outward confident one, you are aware of the significance of having their intimacy needs met. You know the importance of the unconditional love that can only come from a parent. They need to be comforted and encouraged so their confidence can be built on a foundation of truth.

They need to know that they are priceless, special and loved, just as you are, but may not believe it.

* Owen Connolly is a consultant psychologist and marriage and family therapist in private practice in Stillorgan, Co Dublin. See counsellor.ie

The Career Coach

Jane Downes

James, I need to say straight out that perhaps the single most important part of my job as a career coach is to know the difference between coaching and counselling. It would be unprofessional – and presumptuous – of me to offer you advice on your issues around sex, intimacy and relationships. Not that I don’t sympathise hugely with you on account of your struggles in these areas, just that I need to be careful not to overstep the ethical mark here.

That said, the career coach in me cannot help but notice the key role played in your story by work- and finance-related difficulties.

Debt and unemployment are no joke at the best of times. To have struggled with both at a time of relationship breakdown must have been positively hellish. And now, to be chasing scraps of work up and down the country while trying to get your head around a personal landscape that has altered almost beyond recognition – well, I wouldn’t wish that kind of pressure on my worst enemy. You must feel like your head is going to explode.

Now I cannot speak directly to your heartbreaking family situation, nor to your feelings of isolation and inadequacy. But I can urge you not to allow these problems to block your problem-solving ability in the career and financial area. You need to split up “I’m lonely and broke”, into two sentences: “I’m lonely. I’m broke.” Otherwise you risk being overwhelmed by a generalised feeling of helplessness. And my hunch is that you’re not going to be in a safe enough place to really face up to the “lonely” bit until you’ve addressed the “broke” bit. When we’re living hand-to-mouth, as so many people in Ireland currently are, the world feels like a horribly Darwinian place. It’s very hard to let go into gentleness, intimacy, trust and love when you can hear the wolf scratching at the door.

So all this energy you’ve been so understandably investing in feelings of sorrow and anxiety – you need to re-channel it into the task of designing a compelling future for yourself on the career front. Like a lot of 45-year-olds, you probably feel ancient in career terms. But you’re not. It’s still all to play for, believe me.

As a first step towards moving from crisis management to vocational renewal, I would like you to make an appointment with me at your earliest convenience for a free career coaching session. Let’s see if we can’t turn this thing around.

* Jane Downes is the owner of Clearview Coaching Group and author of The Career Book- Help for the Restless Realist. See clearviewcoachgroup.com

The Psychologist

Allison Keating

You have had a very difficult time, James. Life has taken it toll with debt, unemployment and your break-up. These life events cause a lot of stress, strain, and have a major impact on our reserves of hope, which unfortunately often leads to a sense of helplessness and isolation.

Perhaps this is why you crave the initial passionate intimacy but real whole-hearted living means that to truly connect with someone you need to share your vulnerabilities. This is real intimacy – to allow the other person to see the real you.

It is interesting and yet somewhat unfortunate that it seems that you are looking for the passion and yet vulnerability in the women you are seeking comfort from. If you are not sharing about your own vulnerability then it still leaves you disconnected. You may feel in control, but ultimately it must feel lonely.

You say that you crave intimacy, and yet I wonder do you really understand what intimacy is? One part of intimacy is the sexual and passionate aspect, but another side is the ability to form an attachment whereby you feel connected and cared for by the other person.

The delicate balance to feel securely attached is to be able to maintain interdependence, feel connected and that you belong to the relationship.

You say that you have been in talk therapy most of your life. Perhaps you need to find a more solutions-focused approach that allows you to look at the psycho dynamics of your relationships past and present.

Psychological insight through therapy allows you to see into your patterns that are not working for you. To allow you to have a perceivable gap between it happening again and to have the foresight to recognise your reaction to certain life events before it is too late.

The core of this is what is going on for you? There is a lot of personal conflict. You say that you love women, but can you really connect emotionally in a dual-functioning and emotionally satisfying manner? Even though it sounds like you are in great pain, rather than rush into the next “fix”, ask yourself the questions “what do you need?” and “what do you want?”.

If you experience some sexual impulsiveness it might be worth engaging in the process of examining what emotions you are trying to recapture in sexual experiences?

Best of luck, and I hope that you venture on this inner journey of self-discovery and perhaps this could be done in a supportive, empathic and effective therapeutic setting.

* Allison Keating is a registered psychologist and the director of the BWell Clinic in Malahide, Co Dublin. See bwell.ie

The Relationship Counsellor

Lisa O’Hara

There are many reasons why people have affairs but usually at the root of them is fear, hurt and/or anger: fear that if you let yourself get too close to someone, you will become too vulnerable; hurt because you somehow feel rejected or unloved; and anger because your partner cannot or will not meet your needs. Sex does provide an element of comfort and relief when we are distressed. It can help us to feel connected to another and not entirely alone. It is also the most intense expression of physical intimacy between a couple and an important form of communication because when they feel physically close, they are often at their most open with each other.

When a person hasn’t learned to handle their more difficult feelings, they are more likely to engage in destructive behaviours such as drinking, drugs or infidelity in order to numb those feelings.

Unfortunately, this can affect relationships adversely as anxiety becomes their constant companion. It removes the trust that is the bedrock of a relationship and crucial to the survival of that relationship through difficult times.

James is now left with some of the feelings that may have driven him to have an affair in the first place, and it is important that he addresses these as honestly as he can; otherwise he will be led by these feelings to seek a new relationship, rather than a desire to be with someone because he actually likes, respects and values them.

As he is into meditation practices, a particularly helpful way to gently explore his feelings might to be to try a “focusing” meditation, which he can do on his own, or by finding a focusing therapist who can help him get started (see focusingireland.org).

He will continue to have a co-parenting relationship with his ex-wife and he recognises the importance of this for his family. Many people get caught up in their own pain not realising that the children are struggling inside, even if they seem okay. It’s important to reinforce the fact that they are still a family, even if the couple are no longer together.

* Lisa O’Hara is a therapist with counselling agency Relationships Ireland (formerly the Marriage and Relationship Counselling Services). See relationshipsireland.com

James’s Reaction

“Owen you have NOT met many men like me. You lost me (briefly) with that generalisation. Moreover, the ‘prince’ and ‘king’ stuff is for my four-year-old. However, kudos for perceiving that I am and will be a good father. I do not require a trauma specialist but some of the women I’ve met do. I take your point about ‘strong’ women hiding under masks. I perceive a committed practitioner, and a degree of (hippy) wisdom. Thanks.

“I like Jane’s honesty. And when I move into my own space I will call. Interesting and enormously revealing that she was the only one to offer her services free.”

“Allison was well-intended but vaguely off-putting due to her baseless presumption that I do not know how to ‘connect’. I was married for 15 years and faithful for 14, despite my ex having a debilitating illness.

“Lisa’s response highlights the pitfalls of this experiment. It really is hard without a face-to-face meeting. Again, however, there is an almost Patrician attitude to sex and f***ing. That said, I perceive an experienced practitioner; as she correctly points out, my children are, and must remain, the focus. I could talk to this (seemingly wise) woman relatively easily, but have more pressing things to spend my money on: feeding my kids. However, thanks.

Tips for all coping with separation

This is a significant loss in your life even if you wanted it to end. The grief feelings that come up with the loss can be overwhelming, even though they are quite natural. If you feel stuck it might be time to consider getting professional help, such as counselling.

Choose your confidantes wisely. You may be upset and not know what to do next. A wise person will know that you need to be heard without necessarily taking sides or having the answers, unless they are an expert in the area.

Try to find out as much information as you can about how the separation might affect you, your family and your resources. Write down a list of things you want to know more about so that if you are going to a professional, you are well prepared.

It is an upsetting time for all the family, and children are struggling to adjust to a new structure. Routines may be cast aside, but it is precisely at this time that as much structure and order as possible are maintained for everyone’s sake. It gives you a rock to hang onto when you’re all feeling at sea.

Be realisticabout the time it takes to move on from separation. It is often much longer than you could ever imagine.

– Lisa O’Hare

When a relationship ends: Surviving the emotional rollercoaster of separation,by Lisa O’Hara will be published by Orpen Press in October

By Roisin Ingle – Irish Times | Tue, Aug 30, 2011 | Link to Irish Times Article