Under Irish law a divorce can only be granted by the Court but the terms on which the divorce can be granted can be agreed by the couple in advance.
The spouses must be “living apart” from each other for at least two years out of the pervious three and there must be no prospect of reconciliation between them and proper (financial) provision must exist or be put in place by the court. It is a no fault divorce system.
Being clear on when the “living apart” started is an important aspect. In some circumstances the court accepts that a couple may have been living apart even while living in the same house if they have operated “separate households”.
Even when a couple have lived apart for the necessary four years, divorce is still an emotional process as it absolutely ends the spousal relationship between the couple and they are no longer married to each other once the divorce is granted.
Parents can be reassured that divorce does not in any way interfere with their relationship with their children.
The court must make sure that proper (financial) provision is made for both spouses and any dependent children of the marriage and it will have regard to the statutory factors as set out on the section on separation. The court can make a variety of ancillary financial relief orders.
In many cases the parties have resolved their issues at the separation stage and the application for a divorce is a relatively straightforward process. It is important to note that a divorce can only be granted by a Court and cannot be concluded between the parties as is the case with a Deed of Separation.
However, there many cases where there are outstanding issues that have not been resolved at separation or which were resolved but in relation to which one party is now seeking an amendment. There are also many cases where the parties did not formalise their separation at all and are therefore attending to the issues surrounding separation for the first time. For all divorces therefore proceedings have to be issued, again in either the Circuit Family Court or the High Court. The Court can grant all the same Orders as in a Judicial Separation such as Orders in relation to property, maintenance, lump sums, pensions and access.
Revisit A Legal Separation
Frequently clients query whether they can revisit a legal separation. The answer is it depends. The Court has an obligation when granting a divorce to satisfy itself that proper provision exists for both parties and this may involve amending the terms of an agreement entered into by the parties at separation. However, a recent Supreme Court decision in the case of GvG has curtailed the ability of one party to seek a “second bite at the cherry” on divorce. An article on this case can be found on this website.
The Courts are a very blunt instrument to deal with the sensitive issue of children.We encourage parties to resolve issues regarding children in a forum other than the Courts. Even after a separation both parties will have to continue to parent the children, possibly for many years. Where possible it is much better therefore if the parties can attend mediation or family therapy to resolve any issues regarding the children so that they can be kept out of the legal process to the largest extent possible. We can refer clients to a number of such professionals.
In most cases a married couple will be granted joint custody of their children following a separation, although the children will very often have their primary place of residence with one spouse. The issue of maintenance for children arises where the children primarily reside with one party and in those cases the other party pays child maintenance in order to help pay for their ongoing costs. There are no set levels of maintenance and it varies from case to case. It is based on both the needs of the party in receipt of maintenance and the ability of the paying party to pay, although at the end of the day it is the ability of the paying party to pay that is usually the dominant factor.