We advise our clients of the potential implications of separation and divorce and provide objective, sensitive legal advice tailored to your individual circumstances. With many years working with families and couples going through a relationship breakdown, we have first-hand experience of the emotional and financial pressures you may be under. By giving you practical advice and support we can guide you through every aspect of the process, addressing your concerns and bringing about an appropriate resolution. We encourage settlement negotiations as soon as is realistic and will provide practical and objective advice. Family law litigation differs from most other types of litigation in that there is no clear “winner” or “loser” – rather the aim is to find a practical, workable solution, for the parties involved, especially in the current difficult economic environment. We will be available at all times during your case to answer any concerns or questions that you may have.
Currently it is not possible for couples to divorce unless they have been living separate and apart from each other for four out of the previous five years. Most couples, however, need to sort out their affairs immediately upon separation and cannot wait four years to do so. Such couples therefore seek a legal separation and there are two ways to achieve this â€“ by means of a Deed of Separation or a Judicial Separation.
Deed of Separation
A couple can agree the terms of their separation, either through mediation with legal advice or through their respective solicitors. If agreement can be reached then the terms can be reduced to writing in a Deed of Separation. A Deed of Separation is suitable for couples who can reach agreement quickly and who have relatively straightforward financial circumstances. It incurs lower costs than litigation and can be more holistic in terms of the future relationship between the parties. It is important to note however that a Deed of Separation is not suitable if there is a pension to be split as the Trustees of a pension scheme cannot be bound by the terms of a Deed of Separation.
In many separations it is not appropriate to enter into a Deed of Separation. For example, it may be that the couple cannot agree the terms on which they should separate or one party may need to issue proceedings in order to obtain interim orders for maintenance, access to children etc. It may also be that one party wants to progress a separation and the other party does not – in such circumstances the only way to finalise a legal separation is to issue Judicial Separation proceedings. Just because proceedings are issued does not mean that the case will end up in court and in fact the vast majority of such cases are settled in advance of a court hearing.
Judicial Separations can be granted by the Circuit Family Court or the High Court. The vast majority of Judicial Separations are granted by the Circuit Family Court and usually only “big money” cases are heard by the High Court or cases that have to be heard in the High Court for technical legal reasons. The Court can grant a wide range of Orders covering all aspects of a separation, to include Orders for the sale or transfer of property, maintenance and lump sum payments for a spouse or children, access Orders, and Orders splitting pensions.
A couple can only apply for a divorce in Ireland when they have been living apart from one another for four out of the last five years. There is no definition of what living apart means, although usually (but not always) it means living in separate homes.
In many cases the parties have resolved their issues at the separation stage and the application for a divorce is a relatively straightforward process. It is important to note that a divorce can only be granted by a Court and cannot be concluded between the parties as is the case with a Deed of Separation.
However, there many cases where there are outstanding issues that have not been resolved at separation or which were resolved but in relation to which one party is now seeking an amendment. There are also many cases where the parties did not formalise their separation at all and are therefore attending to the issues surrounding separation for the first time. For all divorces therefore proceedings have to be issued, again in either the Circuit Family Court or the High Court. The Court can grant all the same Orders as in a Judicial Separation such as Orders in relation to property, maintenance, lump sums, pensions and access.
Frequently clients query whether they can revisit a legal separation. The answer is it depends. The Court has an obligation when granting a divorce to satisfy itself that proper provision exists for both parties and this may involve amending the terms of an agreement entered into by the parties at separation. However, a recent Supreme Court decision in the case of GvG has curtailed the ability of one party to seek a “second bite at the cherry” on divorce. An article on this case can be found on this website.
The Courts are a very blunt instrument to deal with the sensitive issue of children.We encourage parties to resolve issues regarding children in a forum other than the Courts. Even after a separation both parties will have to continue to parent the children, possibly for many years. Where possible it is much better therefore if the parties can attend mediation or family therapy to resolve any issues regarding the children so that they can be kept out of the legal process to the largest extent possible. We can refer clients to a number of such professionals.
In most cases a married couple will be granted joint custody of their children following a separation, although the children will very often have their primary place of residence with one spouse. The issue of maintenance for children arises where the children primarily reside with one party and in those cases the other party pays child maintenance in order to help pay for their ongoing costs. There are no set levels of maintenance and it varies from case to case. It is based on both the needs of the party in receipt of maintenance and the ability of the paying party to pay, although at the end of the day it is the ability of the paying party to pay that is usually the dominant factor.