13/02/2022
options guide to a peaceful Divorce.
If a marriage has broken down, there are four possible options: fix it or opt for nullity, separation or divorce.
In order to get a divorce in Ireland the following needs to apply...
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.you must be married to each other.
You can't divorce unless you were validly married to start with.
3.living Separately and apart for min of 4 years.
The Divorce Act requires that the couple must have lived apart for at least four of the five years before proceedings are issued. It's not yet clear whether the couple have to be living in separate houses. During the referendum campaign, Government ministers seemed to suggest that a couple could be living apart if they were under the same roof but not sleeping together. That will have to be tested through the Courts.
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 or an Advocacy service.
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, there are many other options available that may help you.
6. Consider the options.
The Divorce Act requires the couple's to consider 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 divorceMost applications will be made to the Circuit Court, but the more difficult cases (or the ones involving a great deal of money) will be dealt with by the High Court.
8. Wait...and wait...and wait.
There may be as many as 60,000 people in Ireland waiting to lodge applications for a divorce. If they all apply at once, the system will collapse. As it is, 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…
9. 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 four 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 and an order entitling one spouse (normally the wife with any children) to sole occupancy of the family home.
10 Sort out the issues.
Try and resolve the main issues before you arrive in Court. If you don't, the Judge will - 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 up to age of 23, or the deed of the house and mortgage is signed over to the wife; or 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 Court may rule that either parent is unsuitable to have custody. Try and sort out the financial position: maintenance, pensions, inheritance. 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 stop education. If there are no children and the couple are both working, they may wish to remain financially independent from one another. 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. Any deal giving away or selling property within three years of a divorce, with the intention of depriving the other partner, may be invalidated
11.Have your day in Court.
The Court is in private and relatively informal; the judge, don't wear wigs and gowns. If everything has been worked out in advance, the hearing will 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. Don't try and drag the children into it; the judge won't be impressed.
