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.
Counselling and mediation to explore possible reconciliation or an amicable as possible separation should always be explored first. This is something your solicitor can assist with providing.
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.
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
A Deed of Separation is a contract to agree the terms of a married couple’s separation rather than having the Courts do so.
Every separation agreement has a clause that the parties will live apart and will usually provide for custody, access to children, maintenance, division of matrimonial property and succession rights.
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.
Following marital breakdown and where a Deed of Separation between the parties cannot be agreed, a spouse may apply for a Judicial Separation.
An application for Judicial Separation must be based on one of six grounds. The most common is that the marriage between both spouses has broken down to the extent that the Court is satisfied that a normal marital relationship has not existed between the spouses for at least one year immediately prior to the application.
The remaining five grounds on which the court can grant a judicial separation are (1) adultery, (2) a spouse has behaved in such a manner that the other spouse can no longer be expected to reside with them, (3) the spouse has deserted or forced the other to leave the home at least one year preceding the application, (4) the spouses have lived apart for one year immediately preceding the date of the application and both consent to the application or (5) that the spouses have lived apart without agreement for a period of three years before the application.
In granting a Decree of Judicial Separation the Court can make various orders such as a Maintenance Order.
Divorce is a relatively recent development in Ireland following a very controversial referendum in November 1995.
To be granted a divorce, the applicants must prove to the court that they have been living separate and apart for two of the previous three years.
Interestingly, the Irish courts have held that a couple can be living separate and apart even though they have physically lived in the same house during that period.
Before a court can grant a decree of divorce, it must be satisfied that there is no reasonable prospect of reconciliation.
A decree of divorce is required to be able to remarry in the lifetime of your previous spouse.
Nullity is also an option where the Court would make a finding that a marriage never existed. This is an extreme option which, because it could leave the parties without any financial redress, the Court are reluctant to grant without cogent evidence.
Related Article: https://www.lynchsolicitors.ie/marriage-breakdown-the-options-2/