Between 2006 and 2011 the number of married people in Ireland increased by nearly 10%, and the number of divorced people increased by more than 150% between 2002 and 2012. These statistics show both a higher incidence of marriage breakdown and a greater number of couples getting a divorce following separation.
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. When we 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. 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.
If a marriage breaks up there are different options available such as nullity, a deed of separation, judicial separation and divorce.
Nullity is 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.
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 couples 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.
If you cannot get agreement on a separation agreement, you can ask a Court to deal with the breakup by, what is called, 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.
In granting a Decree of Judicial Separation the Court can make various orders such as a Maintenance Order, orders about children, orders on property (including the family home) and pensions.
It is important to remember that, it always possible, even in Court situation, to make orders by the agreement of the parties.
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 two out of the three 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. The main effect of divorce, as far as most parties are concerned, is that they can re-marry.
It is in the best interests of couples if they can separate amicably and without going to Court so in our next legal column we will discuss alternatives to court which are available to couples when a relationship breaks down.
Related Article: https://www.lynchsolicitors.ie/marriage-breakdown-the-options-2/