How to Divorce

 

Margaret O’Flaherty, Solicitor, approaches your divorce, with a calm and understanding manner of the difficulties you, your spouse and children may face.

Reconciliation is obviously the first option. Why would anyone want to break up a partnership which has a chance of success if it can be saved? Agencies like Relate can help couples to 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 nullity. Nullity means that a marriage never existed – even though the couple may have been together for umpteen years and 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.

In more 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 for example (not too common, but it does happen!)

If a decree of nullity is granted, each partner is entitled to marry someone else, as if the former “marriage” never existed. The advantages of a decree of nullity over a decree of divorce are that there is no minimum waiting time and, in the case of a well-off spouse, he (or she) may avoid the financial burden which follows divorce.

But, assuming that the couple are not entitled to a decree of nullity, they should consider separation – either by consent or by court order.

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 the couple can’t agree matters, the Court has power to resolve all the issues involving children, property and money.

The advantage of separation is that a couple can reconcile at any time and get back together again. But a judicial separation order merely gives the couple the right to live apart; the major disadvantage is that neither spouse can marry someone else.

If a married couple have split up, have unsuccessfully attempted reconciliation and now one or both partners want to marry someone else, the only answer is D-I-V-O-R-C-E.

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. That can takes four years or more so, if it’s an option, it should be investigated at an early stage.

 

---

The 10 steps to an Irish divorce are:

 

1. Live in Ireland.

You can’t get an Irish divorce unless at least one spouse is domiciled in the Republic or has lived in the country for a year before bringing proceedings.

2. Marry each other.

You can’t divorce unless you were validly married to start with.

3. Wait…a while.

The Divorce Act requires that the couple must have lived apart for at least two of the three years before proceedings are issued.  Of importance, couples can be living “separate and apart” under the same roof, once no “normal marital relationship “is in existence.

*There were changes made subsequent to May 2019 referendum.

4. Break up, and stay broken up.

The Court must be satisfied that there’s no reasonable prospect of reconciliation and that both the spouses (and any children) are properly provided for.

5. See a solicitor.

There’s nothing to stop you bringing the action yourself if you can understand, for example, Section 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.

A straightforward, uncontested divorce should not necessarily be expensive in terms of legal costs but the real cost of the process not being done expediently in your long term financial interest can even be ruinous.

6. Consider your options.

The Divorce Act requires the couple’s solicitor to inform them about the options of reconciliation, mediation and separation agreements. Reconciliation has presumably already been tried and failed. Mediation, possibly through the State-funded 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 by the couple and signed by each of them. It can be made legally enforceable.

7. Apply for a divorce.

Most applications will be made to the Circuit Court, but the more difficult cases (or the ones involving a large portfolia of assets) will be dealt with by the High Court.

8. Seek a stop-gap 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 two years, you may have established a modus vivendi with your spouse which can last until the Court hearing. But if not, either spouse is entitled to apply for interim remedies including orders for periodical payments (maintenance), custody of children, safety or barring orders.

9. 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. Matters to be considered are:

1. 1. What is to happen to the Family Home, is one party perhaps to remain in situ, until the dependent children attain a certain age and then sold on a percentage split? The Courts must ensure that proper provision is made for both parties when it comes to living arrangements in a Divorce, it may be the case that the Family Home is to be sold.
   2. Access arrangements for children, as a diverse society, it is normal for both parents to be in employment, therefore careful consideration needs to be given to access arrangements that will disrupt the children as much little as possible.  Also, when children reach a certain age, their wishes should also be taken into consideration, when agreeing or seeking to agree access.
   3. Maintenance for children and/or dependant spouse, is maintenance to be paid to either spouse in support of themselves and/or the dependent children? Both parties financial arrangements need to be looked at carefully, to make a fair and reasonable decision.

But, whatever the couple may decide between themselves, they cannot legally contract out of their right to seek more money from the other 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 of a divorce, with the intention of depriving the other partner, may be invalidated by the Court.

10. Have your day in Court.

The Court hearing is in private and relatively informal; the judge and barristers, for example, 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 a couple have fulfilled the legal requirements, either partner is entitled to a divorce, however badly they may have behaved. But, when the Court makes financial or property orders, it is entitled to take into account the conduct of either spouse, if it would be unjust to disregard it.

If possible try and remain amicable and courteous to each other through the process, if there are children of the marriage, your divorce will be inherently difficult enough for them, the calmer the proceedings process is, the best it is for the children and the parties.   Settlement talks often occur, close to a hearing date or on the haring date itself, it is not a sign of weakness to engage in talks, it is always advised to see if all matters or the majority of matters can be agreed upon before going in front of a Judge, at the end of the day judges are human, if you don’t like what they order, your only option is to appeal the decision to a higher court – costing you more money.