|So you want an Irish divorce? The first advice any family lawyer should give you is: think again. And then, once you’ve thought about it, think about it yet again.
Divorce is no picnic. It may be difficult for heterosexual Irish couples, who haven’t experienced the consequences of divorce and remarriage in other countries – not least on children – to realise the bitterness, the loneliness and the psychological trauma which can accompany divorce.
Having said that, hundreds – if not thousands – of Irish couples live in circumstances which can hardly be worse than the most extreme divorce scenario. But even then, divorce is not necessarily the answer. If a marriage has broken down, there are four possible options: fix it or opt for nullity, separation or divorce.
Reconciliation is obviously the first option. Why break up a partnership which has a chance of success if it can be saved? You may be helped resolve a wide range of problems, ranging from sexual difficulties to alcoholism or unfaithfulness. But if the relationship can’t be rescued, the next option which should be considered is to seek a decree of nullity.
Nullity means that a marriage never existed – even though you may have been together for umpteen years or have innumerable children and grandchildren. The most common ground for a decree of nullity is that the couple were, at the time of the marriage, unable to “enter into and sustain a normal marital relationship”. Such a claim is normally based on the psychological condition of one or both spouses (though the existence of divorce in this jurisdiction is making decrees of nullity more difficult and rare). In extreme cases, the couple may have failed to meet the legal requirements for marriage (they may have been under 18 or have given insufficient notice) or they may be too closely related by blood.
Separation can simply mean one partner moving out, going to live somewhere else and never setting eyes on the other partner again. At the other extreme, it can involve a full-scale court battle, with children, the family home, wages and pensions all thrown into the melting pot. If you can’t agree matters, the judge has power to resolve all the issues involving children, property and money.
The advantage of separation is that you can reconcile at any time and get back together again. But a so-called judicial separation order merely gives you the right to live apart; the major disadvantage is that neither of you can marry someone else. If you have split up, unsuccessfully attempted reconciliation and now one or both of you wants to marry someone else, the only answer is
It should be stressed that divorce is purely a civil remedy. It has nothing whatever to do with Church marriage. Catholics who were validly married in church and subsequently obtain a divorce may not marry another partner in a Catholic church while their first partner is still alive. Anyone who may wish to do so, for religious or family reasons, should inquire from the local diocesan office about the possibility of obtaining a Church nullity (which is not the same as a state nullity). That can takes four years or more so, if it’s an option, it should be investigated at an early stage.
The 12 steps to an Irish divorce are:
Marry each other. You can’t divorce unless you were validly married to start with.
Wait for four years. The Divorce Act requires that you must have lived apart for at least four of the five years before proceedings are issued. You do not necessarily have to have been living in separate houses.
Live in Ireland. You can’t seek an Irish divorce unless at least one of you is domiciled in the Republic of Ireland or has lived in the country for a year before bringing proceedings. (That said, the provisions of Brussels II bis mean that, since 1 March 2005, the state will recognise any divorce granted in an EU state on the basis of habitual residence, while a divorce granted in, say, New York based on the domicile of one of the parties will also be recognised. (H v H  IESC 7)
Break up, and stay broken up. The judge must be satisfied that there’s no reasonable prospect of reconciliation and that both of you (and any children, marital or non-marital) are properly provided for.
See a solicitor. There’s nothing to stop you bringing the action yourself if you can understand, for example, s 36(b) of the Divorce Act, which says: “Subsection (1) of section 115A of the Finance Act 1993 (which was inserted by the Finance Act 1994 and provides for the abatement or postponement of probate tax payable by a surviving spouse) shall apply to property or an interest in property the subject of such an order as it applies to the share of a spouse referred to in the said section 115A in the estate of a deceased referred to in that section or the interest of such a spouse in property referred to in that section, with any necessary modifications”!
If that poses problems, take expert advice. If you can’t afford a solicitor, apply for legal aid. (There were 14,991 applications for civil legal aid in 2016, a slight drop on previous years, but 74 per cent of applicants sought services concerning family problems.) In order to qualify financially for legal services from the Legal Aid Board, you must satisfy a means test (except, since 2018, in the case of domestic violence applications) and your annual disposable income must be less than €18,000 and your disposable capital less than €100,000. If you want to avoid the waiting lists in the legal aid centres, go private. Members of the public may not deal directly with barristers, but if you know of a good family law barrister, instruct your solicitor to brief him or her, or you can rely on your solicitor’s advice. Your solicitor is obliged to give you a written estimate of the fees up front; they’ll vary according to the complexity of the case. A straightforward, uncontested divorce should not cost more than about €2,000.
Consider the options. The Divorce Act requires your solicitor to inform you both about the options of reconciliation, mediation and separation agreements. Reconciliation has presumably already been tried and failed. Mediation, possibly through the Legal Aid Board’s Family Mediation Service, means sorting out all the contentious issues before (or instead of) going to court. A separation agreement is a legal document, agreed and signed by both of you. It can be made legally enforceable, but the judge is entitled to disregard it when granting a divorce.
Apply for a divorce. Most applications will be made to the Circuit Court, but the more difficult cases (or the ones involving a great deal of money or property) will be dealt with by the High Court. All the papers must be served on the other spouse, who should respond with their own papers. (Special rules apply if the other spouse lives outside the Republic of Ireland.)
Wait... In total, 3,995 people applied for divorce in Ireland in 2017, just over 4 per cent down on the previous year. The vast majority of these were in the Circuit Court, of which just one was refused. Efforts are being made to provide extra judges, more courtrooms, additional lawyers – with all the back-up facilities that will require. But you may still have to wait many months before your case comes up for hearing. In the meantime...
Seek a temporary solution. While you’re waiting for the divorce application to be heard, you’ll need to get on with your life. If you’ve already been living apart for four of the past five years, you may have established a modus vivendi with your spouse which can last until the court hearing. But if not, either of you is entitled to apply for interim remedies, including orders for periodical payments (maintenance), custody of children, safety or barring orders and an order entitling one of you (normally the wife with any minor children) to sole occupancy of the family home.
Sort out the issues. Try and resolve the main issues before you arrive in court. If you don’t, the lawyers will – and that will take time and cost money. Try and agree what to do with the family home. One common solution is for the wife to remain in the home until the youngest child is 18 or has ceased education, and then for the house to be sold and the proceeds split on an agreed basis. In the case of children, if they’re young, they’re normally left with the mother, while the father has access – perhaps they may stay with him at weekends or for holidays. But the judge may rule that either parent is unsuitable to have custody. Try and sort out the financial position – maintenance, pensions, inheritance – beforehand. Normally the working spouse will make periodical payments for the spouse who stays at home with the children. Payments for children usually cease when they’re 18 (or 23 if they remain in full-time education or are disabled). If there are no children and you are both working, you may wish to remain financially independent from one another. But, whatever you may decide between yourselves, you cannot legally contract out of your right to seek more money from your partner, even after a divorce. And there’s no point in trying to hide money or property before the court hearing. Any deal giving away or selling property within three years before a divorce, with the intention of depriving the other partner, may be invalidated by the court.
Have your day in court. The court hearing is relatively informal and, even if the media are present, the parties can’t be identified; the judge and barristers also don’t wear wigs and gowns. If everything has been worked out in advance, the hearing should be reasonably brief. Irish divorce is not fault-based so, if you have fulfilled the legal requirements, you are both entitled to a divorce, even if the other spouse is responsible for the breakdown of the marriage. But, when the court makes financial or property orders, it is entitled to take into account the conduct of either of you, if it would be unjust to disregard it. Don’t try and drag the children into it; the judge won’t be impressed.
Finally, pick yourself up, dust yourself off and think twice before you tie the knot again!
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