Separation/Divorce

Posted by Higgins O Reilly on July 10 2013 @ 20:46

When negotiations fail to resolve all issues, and the parties cannot agree on a solution, then the parties may have no alternative but to seek the assistance of the courts. Learn more about the Courts.

You can seek assistance from the courts for the following:

(A) Judicial Separation

Where the court has power to grant a decree of Judicial Separation on a number of grounds including adultery, unreasonable behaviour, desertion, existing separation or where a normal marital relationship has not existed for at least one year prior to the application. An applicant must prove their case to the court on the balance of probabilities. On granting a judicial separation the court must make proper provision for the spouses and any dependant children and can make a variety of orders in relation to custody of dependent children, the family home, maintenance and financial provision, among other matters. A decree of Judicial Separation can be sought in the Circuit Court or the High Court depending on the financial circumstances of the parties.

(B) Deed of Separation

A Deed of Separation, or a Separation Agreement as it is otherwise known, is in essence a contract entered into between a husband and wife, where they agree to live separate and apart and then deal with all other issues arising from their separation. The primary purpose of the Deed is to record what has been agreed between the spouses in relation to all matters such as the care of dependant children, if any, and all financial matters. A Deed of Separation can be entered into between spouses, even where they have already physically separated. In those circumstances, the Deed will formally recognise that the couple have separated and will then deal with all other agreed matters. A Deed of Separation is in effect an alternative to judicial separation proceedings but can only work if both husband and wife agree to its terms. Where a Deed of Separation is signed by both husband and wife, then they are both legally bound by its terms and are precluded from bringing judicial separation proceedings.

(C) Decree of Nullity

A Decree of Nullity is a court Order granting an annulment of a marriage. Marriages can only be annulled on very specific and limited grounds. Certain marriages are unlawful or “void” from the outset, for example if either person is already married and not lawfully divorced or where persons marry within a prohibited degree of relationship. Other marriages are lawful from the outset but are “voidable”, in other words they can be declared to be invalid by a court. There a number of grounds on which a marriage can be annulled on this basis, such as an inability to consummate the marriage or where a spouse lacked the capacity to form and sustain a normal and caring marital relationship. This incapacity which is relied upon  to have the marriage annulled must have existed at the time the marriage was entered into. A “voidable” civil marriage can only be annulled by a Decree of Nullity from a court. A church annulment has no legal effect on the validity of a civil marriage. The effect of the annulment of a marriage is that the parties are deemed never to have been married. As a consequence, the parties to the marriage lose all of the legal rights which they would have had as husband and wife. The rights of any children to the marriage are substantially unaffected by the annulment.

(D) Divorce

A divorce will only be granted if a couple have “lived apart” from each other for a period (or periods) amounting to four years out of the previous five, and there is no prospect of reconciliation between the parties. Proper financial provision must also be made for each spouse and the dependant children and the court has the power to make a variety of financial relief orders including Property Adjustment Orders, Periodical Payments Orders, Lump Sum Orders, Pension Adjustment Orders, and Financial Compensation Orders. When determining what constitutes proper provision, the court must have regard to all the circumstances of the case and in particular:

a) the income, earning capacity, property and other financial resources which each spouse has or is likely to have in the foreseeable future;

b) the financial needs, obligations and responsibilities which each has or is likely to have in the foreseeable future;

c) the standard of living enjoyed by the family before proceedings were instituted or before the separation occurred;

d) the ages of each spouse, the duration of the marriage and the length of time the couple lived together;

e) any physical or mental disability of the spouses;

f) the accommodation needs of each spouse;

g) the effect on the earning capacity of each spouse of the marital responsibility assumed by each while they lived together and the degree to which the future earning capacity of a spouse is impaired for having given up the opportunity of paid employment to look after the home or care for the family;

h) the conduct of each of the spouses, if such that the court considers it would be repugnant to justice to disregard it;

i) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family including any contribution made by each to the income, earning capacity, property and financial resources of the other and any contribution by looking after the home or caring for the family;

j) the value to each of the spouses of any benefit which the spouse will forfeit;

k) the rights of any person other than the spouses but including a person to whom either spouse is remarried;

l) the court must also have regard to the terms of any Deed of Separation or Separation Agreement signed by the spouses.

Each case is decided on its facts. There is no automatic division of assets on a 50/50 basis. The division will depend on the particular facts of the case in question.

(E) Domestic Violence

A person who is either married or living with another and is subjected to domestic violence can apply to court for protection against their abusive spouse or partner. Applications solely in relation to domestic violence can be brought in the District Court. For married couples who are involved in judicial separation or divorce proceedings, it is possible to apply to the Circuit Court or the High Court in the context of those proceedings for court protection if a spouse is subjected to domestic violence by the other spouse. The court can grant protection, safety and barring Orders as appropriate. Those Orders are normally granted on an “interim” or temporary basis, while the judicial separation or divorce proceedings are ongoing. At the conclusion of the proceedings, the court would then decide if ongoing final orders are required.

(F) Maintenance

Similar to domestic violence situations, it is possible to apply to court solely for maintenance. Where judicial separation or divorce proceedings have been issued, either spouse can also seek maintenance in the context of those proceedings. Maintenance can be claimed for dependant children and by a spouse personally, if that spouse is financially dependant on the other spouse). In such cases maintenance is generally ordered by the court to be paid on an ‘interim’ or temporary basis until the judicial separation or divorce proceedings are concluded. The level of maintenance which will be awarded on an interim basis will be dependent on the financial circumstances that exist at the time the application is made. However that ‘interim’ maintenance will be reviewed when the case is dealt with at a final hearing, at which time maintenance may be varied depending upon the overall financial settlement agreed by the spouses or ordered by the court.

(G) Co-Habitation

Under current Irish law, only married couples can apply for judicial separation or divorce. As a consequence, only married couples have the benefit of the very extensive financial claims which may be made against each other (for example claims against property and other assets, pension entitlements or succession rights). For couples who are not married but merely co-habit, there are no such automatic rights. However this will change significantly if the Civil Partnership Bill, 2009, is enacted.

(H) Foreign Divorce

If an individual has married in the past, whether in Ireland or abroad, and subsequently obtains a divorce outside of Ireland, then they are advised to seek legal advice as to whether or not that divorce is recognised in Ireland. Certain divorces obtained abroad will not be recognised in Ireland, in which case that individual would not be free to remarry in Ireland even if the divorce is recognised in other countries and the person would be free to remarry in those countries. However, even if one spouse has obtained a foreign divorce which is recognised in Ireland, it may be possible for the other spouse to make a claim for financial provision against the spouse who obtained the divorce, if it can be shown that sufficient financial provision was not made in the original foreign divorce proceedings.

(G) What are the Financial Reliefs Available?

On divorce or judicial separation the court has the power to make a number of orders which allows the court to make financial provision for the respective parties and any dependant children. The court has wide powers to adjust the financial position of both parties in order to ensure that there is proper financial provision in place for both the husband and the wife and any dependant children. While, in many cases, this might necessitate the sale of the family home so that both spouses can re-house post separation and a division of the proceeds of sale, in other cases, it can give rise to significant transfer of wealth from one spouse to another. Some of the Orders available to the court in this respect are as follows:

  • A Property Adjustment Order: directing a spouse to transfer a property(s) to the other spouse and/or dependant children. This may often involve the transfer of the family home to the dependant spouse.
  • Family Home: the court can give one spouse the right to reside in the family home to the exclusion of the other.
  • A Periodical Payments Order (Maintenance Order): There is a legal obligation on both spouses to maintain each other, although this obligation often tends to become focused on the spouse with the higher earning capacity. A Maintenance Order 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. In addition the payment is sometimes secured against a fund or a property which can be drawn upon or sold if there is default in payment. 
    The level of maintenance depends on the circumstances of both the husband and wife and the court takes into account the spouse's reasonable needs and those of the children, and the true income of both parties.
  • A Lump Sum Order: this requires a spouse to pay a lump sum(s) to the other spouse in respect of that spouse and any dependant children. In some cases the court can order a spouse to make a lump sum payment either in addition to or in substitution for periodical maintenance. The quantum of the lump sum will depend on the circumstances of the case and the wealth of the spouses.
  • A Pension Adjustment Order: the court has the power to divide pension entitlements and can order a spouse to transfer all or part 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 where the proceeds of a life policy will substitute for maintenance.
  • A Custody or Access Order: The court can direct which parent is to have custody of the children and what arrangements are to be in place in regard to access to them.
  • An Order with regard to Succession Rights: Following judicial separation or divorce, the court can order the renunciation and extinguishment of Succession Act rights. 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 estate.
  • Reviewable Dispositions: preventing the disposal of assets by either party or the waiver of rights.

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About

Melanie joined the firm in 2008 and formed the partnership  with Alice O’Reilly in January 2012, changing the firm’s name to Higgins O’Reilly Solicitors. The firm opened its second branch office in Leixlip, Co. Kildare in 2013, which Melanie heads up. 

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