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Marriage Breakdown -When Your Marriage Does Not Last For As Long As You Both Shall Live

Marriage Breakdown – the Options

If you are faced with marriage breakdown, and the uncertainty that comes with it, it is important for you to know what options are available to you.  When Lynch and Partners are approached by someone who is going through difficulties in their marriage the first thing we explore is the possibility of reconciliation and mediation.  We give clients the names and addresses of people qualified to help, which includes counsellors and mediators.  When we say counselling we mean both marriage counselling and personal counselling.  Counselling and mediation are confidential; the evidence of marriage counsellors and mediators is not admissible in Court.  Anything you say will not be used against you in Court or disclosed to your spouse.

All family law proceedings, which come before the Courts, are as informal as possible.  Hearings are heard in private – the public are not allowed to sit in the Court room during family law cases.  No wigs or gowns are worn in Court – such measures go some way toward relieving the stress that spouses feel when their cases finally come to Court.

There is no doubt that it is better for spouses to try and iron out their problems before going through the Courts.  Recent trends have shown that, generally, parties do reach an agreement rather than allowing their issues to be decided by a Judge.

If a marriage breaks up there are different options available such as a deed of separation, judicial separation, divorce or, in certain circumstances, nullity.

Deed of Separation

Many family disputes arising from marital breakdown may be settled agreeably between the spouses.  A Deed of Separation is a contract that may be drawn up and completed by parties when their marriage has broken down.  They agree the terms of their separation rather than having the Courts do so.  Every separation agreement has a clause that the parties will live apart.  Usually, a Deed of Separation will provide for custody, access to children, maintenance, division of matrimonial property and Succession rights.  The terms will be put in writing and signed by both parties.  While a child’s future education can be included, Court approval will be required for alteration of pensions.  If you enter into a Deed of Separation you cannot then, sometime afterwards, apply for a Judicial Separation.  You can still apply for a Divorce, but the Court will take into account the terms of the Deed of Separation.

Judicial Separation

Following marital breakdown a spouse may apply for a Judicial Separation.  If a couple get a Judicial Separation they no longer have to live together.  Both the High Court and the Circuit Court have jurisdiction to hear Judicial Separations, depending on the extent of the family property.  If the family assets are in excess of €3 million the correct venue is the High Court.

The Court may give a Decree of Judicial Separation because of:  1) Adultery.  2) A spouse has behaved in such a manner that the other spouse can no longer be expected to reside with him/her.  3) The spouse has deserted or forced the other to leave the home at least one year preceding the application for the Judicial Separation.  4) The spouses have lived apart for one year immediately preceding the date of the application and the Respondent consents to such an application being made.  5) The spouses have lived apart without agreement for a period of three years prior to the date of the application.  6) The marriage between both spouses has broken down irretrievably to the extent that the Court is satisfied that a normal marital relationship has not existed between the spouses for the period of at least one year immediately preceding the date of the application.  This is the usual ground.

In granting a Decree of Judicial Separation the Court can make various orders such as a Maintenance Order.

Divorce

Divorce is a recent development in Ireland following a very controversial referendum in November 1995.  Since 1997 people can apply for a Divorce in Ireland.  To get a Divorce it is necessary to satisfy the Court that: 1) You have lived apart for four out of the five previous years.  2) There is no reasonable prospect of reconciliation.  3) Proper provision will be made for all members of the family.  4) Either spouse is domiciled in Ireland at the date of issue of the proceedings or that either spouse has been ordinarily resident in Ireland for one year before the date of issue of the proceedings.  The first condition on living apart does not specifically mean that you and your spouse have to have lived in separate houses.  Spouses can live separate and apart while under the one roof.  The parties will have to satisfy the Courts that although they continue to live in the same home they lead separate lives, by producing evidence as to circumstances such as sleeping arrangements.  The main effect of divorce, as far as most parties are concerned, is that they can re-marry.

Nullity

Nullity is also an option where the Court would make a finding that a marriage never existed.  This is an extreme option which could leave the parties without any financial redress.

Alternative Dispute Resolution (ADR) is often used in family law matters.  In sensitive matters ADR does not add to the conflict in question, where a Court situation can.  For family law matters such as separation, the forms of ADR used are structured negotiation, collaborative law and mediation.  Our Managing Partner, John M. Lynch is an accredited Mediator, collaborative lawyer and practitioner of structured negotiations and he regularly uses these methods in family law disputes, helping people to reach an agreement themselves rather than deciding the outcome for them.  We will look at these options in detail in future blog posts.

Principal of Lynch Solicitors, Clonmel , Co Tipperary

For further information on Separation Agreements, Judicial Separation or Divorce, please contact John M. Lynch at john@lynchandpartners.com  or Gillian O`Mahony at gilliano@lynchandpartners.com or 052-6124344.

The material contained in this article is provided for general information purposes only and does not amount to legal or other professional advice.  While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.

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