A relationship breakdown can often be a very traumatic and upsetting time for all involved. Whether it is a couple living together, parents of children or a married couple, every relationship break up brings its own unique challenges and hurdles.
What happens when you visit a Solicitor to discuss a Separation or Divorce?
The first thing which we always explore is the possibility of reconciliation and counselling. We give clients the names and addresses of people qualified to help, which includes counselors & mediators. When we say counseling, we mean both marriage counselling and personal counselling. Mediation is a non-confrontational way to discuss and resolve issues.
If a marriage breaks up – What are the options available?
- Deed of Separation
- Judicial Separation
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.
Deed of Separation
Many family disputes arising from marital breakdown may be settled amicably between spouses.
A Deed of Separation is a document that may be drawn up and executed by the parties to a marriage, where that marriage has broken down and where the parties do not wish to have recourse to the Courts for the purpose of agreeing the terms of the breakdown. A fundamental provision of every separation agreement is an agreement that the parties will live apart.
Usually a Deed of Separation will make provision for custody, access to children, maintenance, division of matrimonial property and Succession Act rights.
The terms will be committed to writing and signed by both parties. The Deed will also attempt to deal with matters that may cause confusion in the future, such as the education of dependent children or the entitlement to apply for passports for dependent children. However, one such provision that a Deed may not make reference to, without first getting Court approval, is that of an alteration of existing pension.
There are six grounds upon which the Court may grant a Decree of Judicial Separation:
- A spouse has behaved in such a manner that the other spouse can no longer be expected to reside with him/her.
- The spouse has deserted or forced the other to leave the home at least one year preceding the application for the Judicial Separation.
- 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.
- The spouses have lived apart without agreement for a period of three years prior to the date of the application.
- 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
- Family Home
- Property – declaratory or adjustment orders
- Barring Orders/Safety Orders
- Custody and access
- Succession rights – Extinguishing the rights that one spouse would have over the estate of the other spouse in the event of his/her death
- Pension adjustment.
- Life Cover
Divorce is a fairly recent development in Ireland and the ban was lifted following a very controversial referendum in November 1995 and from 1997 one could apply for a Divorce in Ireland.
There is no obligation on spouses to have either sought a Judicial Separation or effected a Deed of Separation before seeking a Decree of Divorce.
In order to successfully obtain a Decree of Divorce from an Irish Court, it is necessary to satisfy the Court that:
- You have lived apart for four out of the five previous years.
- There is no reasonable prospect of reconciliation.
- Proper provision will be made for all members of the family.
- Either spouse must be 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.
Alternatives to Court
Alternative dispute resolution is an alternative to litigation / court.
In sensitive matters, particularly family law disputes, ADR does not add to the conflict in question, where a Court situation can. It is a less stressful method for the individuals who are already involved in stressful situation.
What the structured negotiation process seeks to do is to establish ground rules for negotiation to enable parties to be clear about what they can expect from the process and also what is expected of them.
It differs from collaborative law / practice in that the lawyer doesn’t make a commitment not to go court on behalf of the client and also the four way meetings that are an intrinsic part of the collaborative process are an optional part of the structured negotiation process.
The collaborative approach involves both parties and both solicitors making a commitment at the outset of the case, to be open, honest and transparent with each other.
It involves strictly controlled round table meetings with the parties and the solicitors in attendance. It rules out Court as an option with a view to giving separating or divorcing couples a greater impetus to sort out their differences themselves with the assistance of their solicitors and without the Judge imposing a solution that might be unworkable and to no ones liking
Mediation is a swift, cost efficient method of dispute resolution. It is based on the principle that people can resolve their own disagreements if given the right encouragement.
A mediator is not the decision maker but an independent, third party to the process.
The function of a mediator is to facilitate a resolution between the parties.
A mediator does not judge who is right or who is wrong, but works with parties to help them arrive at a solution to satisfy their interests.