20140707164608

July 2014

divorce

FLAC Legal Divorce v2 band_Layout 1 26/06/2014 20:01

Divorce has been available in theRepublic of Ireland since 1997.

Once a divorce is obtained, theparties (the ex-spouses) are freeto remarry or enter into a civilpartnership.

Parties remain joint guardians of their minorchildren (under 18 years of age). Divorces areusually sought in the Circuit Court (calledCircuit Family Court when dealing with FamilyLaw Cases); however, if the parties are verywealthy they usually apply to the High Court.

What do I have to do to get a divorce?

Divorce is a no-fault system. In other words,there doesn’t have to be any misconduct onthe part of one of the spouses in order for adivorce to be granted. However, you mustmeet certain conditions to obtain a divorce.

1. When divorce proceedings begin, thespouses must have lived apart for at leastfour of the previous five years.

2. There must be no reasonable prospect ofreconciliation between the parties.

3. There must be proper provision for spousesand dependent family members.

4. Any other conditions that the court deemsnecessary or appropriate.

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FamilyLaw (Divorce)Act 1996


Once these conditions have been met, either spouse may apply to court for a decreeof divorce. Once the court is satisfied thatthese conditions are fulfilled, a decree will begranted thereby dissolving the marriage.

Divorce proceedings can be either contestedor uncontested, which means both spousescan agree to the divorce or one may object.Both spouses may agree what reliefs shouldbe sought, which can be more cost-effectiveand may speed up the divorce process. On theother hand, they may have a difficult timeagreeing how assets should be divided, whatlevel of financial support should be agreedand with whom the children will reside.

When the court grants a decree of divorce, itcan also make a number of ancillary oradditional orders in relation to custody ofchildren and access to them, the payment ofmaintenance and lump sums, the transfer orsale of the property, the extinguishment ofsuccession rights, pension rights and othermatters.

What effect does a Decree of Divorcehave?

When a Decree of Divorce is obtained, themarriage is dissolved and the parties are nolonger spouses, so they are free to remarry orenter into a civil partnership.

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Ex-spouses lose their inheritancerights in relation to each other.

Some rights bestowed by marriage will survive the divorce. For example, parties areseen as spouses for the purposes of the Domestic Violence Act 1996, both remainguardians of their children, and formerspouses are not deprived of a widow’s/widower’s state pension.

Divorce can alter the rights of a former spouseto the family home.

A person may also haveresponsibilities to maintain(financially support) a former orex-spouse even after divorce,until the dependent ex-spouseremarries. Any children agedunder 18 (up to 23 if in full-timeeducation) are also eligible formaintenance support. You shouldseek specific advice on this issue.(See also FLAC’s leaflet onMaintenance)

How do I go about getting a divorce?

The first step when seeking a divorce is toconsult a solicitor. You can bring divorceproceedings on your own, but the legislationmay be difficult to understand without asolicitor’s help. If you cannot afford a

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FamilyHome ProtectionAct 1976asamendedby theFamilyLaw Act1995

SuccessionAct 1965


solicitor, you should apply for civil legal aidfrom the Legal Aid Board (see below).

It is possible to issue one’s own divorceproceedings without legal assistance and the officials at the Circuit Family Court offices can provide assistance to lay litigants.

What documents will I need to bring tomy solicitor?

l State marriage certificate

l Any previous court orders

l Any deed of separation or earlieragreement

l Details of any children of the marriage,including any special needs

A financial profile of husband and wife, toinclude:

l Employment status and income

l Mortgages, debts and other liabilities suchas bank loans, overdrafts etc

l Properties held either jointly or separately

l Current maintenance and/or accessarrangements (if any)

l A list of all other assets including cars,savings accounts, shares etc

l Details of Pensions/Insurance Policies

l Accounts and recent payslip and recentP60 form

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l Receipts and expenses, to include weeklyoutgoings such as food shop and bills etc

What if my spouse and I need help to negotiate the divorce terms?

The law requires a solicitor to inform thecouple of the possibilities of reconciliation,mediation and separation agreements and theoption of judicial separation (See Separation

leaflet for more information on this).

Mediation

Family Mediation is a process inwhich an impartial third person(the mediator) assists thoseinvolved in family breakdown toreach agreement regarding theirchildren, finances and property.Mediation is particularly useful where theparties have agreed to separate or divorce orwhere they have any issues relating tomaintenance, custody, access or guardianship.

The courts favour mediation and judges willadjourn cases in some instances and suggestmediation before proceeding with the case incourt.

The mediator should be accredited andprofessionally trained – his/ her job is tomanage negotiations in an impartial way.Generally speaking mediation takes place over3 to 6 sessions. The parties should obtain their

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FamilyLaw(Divorce)Act 1996


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own separate legal advice throughout themediation process.

When agreement is reached, the mediator willdraw up a written document usually referredto as a memorandum of understanding thatsets out what the parties have agreed. Theparties will each be advised by the mediatorto get independent legal advice and themediated agreement can then form the basisof the Deed of Separation or Decree ofJudicial Separation/Divorce on consent terms.

Note: A mediated “agreement” ofunder standing is not a legal agreementuntil it is formal ised by a Court Order.

The Family Mediation Service is a state-run,non-means tested and free service formingpart of the Legal Aid Board. There can be awaiting time of a number of weeks/ months.Each party must contact the mediation serviceseparately to book themselves in. There arecurrently 16 offices located around Ireland,some part-time and some full-time. For moreinformation, check the website atwww.legalaidboard.ie

Apart from the Family Mediation Service youcan avail of mediation on a private basis whereyou pay by the hour. Some solicitors andbarristers have qualified as mediators andthere links on both the Law Society and Law


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Library websites. However, mediators do nothave to be lawyers and there are a number ofmediation bodies.

Northside Community Law Centre (NCLC) Tel: 01 848 2988 Web: www.nclc.ie and

Ballymun Community Law Centre (BCLC) – Tel: 01 862 5805 Web: www.bclc.ieboth provide a free family mediation service.

Collaborative Law

This is an alternative method of resolution offamily law disputes including separation anddivorce. The process takes place outside acourt setting.

You and your partner work with your ownspecially trained collaborative lawyers and tryto resolve the various issues through face-to-face meetings. Once issues are agreed thelawyers can draft a binding agreement. If theprocess breaks down neither of the lawyerscan act for you in any contested courtproceedings.

The Legal Aid Board has published aninformation leaflet on Collaborative Practicewhich can be downloaded from their website.

What is the difference betweenMediation and Collaborative Law?

There are a number of differences but themain one is that in Collaborative Law your


lawyer is at your side at all times during theprocess and if the process has been successfulyou have a legally binding agreement. Inmediation the agreement reached betweenthe parties is not legally binding. When themediation has concluded the parties areadvised by the mediator to go to theirsolicitors with the mediated agreement forlegal advice. Mediation can be the first step toattaining a Legal Separation or Divorce.

Court procedure

All divorces must be granted by a court,whether they are on consent (when bothparties agree) or where they are contested. Ifthe parties are unable to resolve the issuesbetween them, they can turn to the courts fora determination of the terms of their divorce.

The person who makes the application for adivorce is known as the applicant in courtdocuments. Their spouse is known as therespondent, who is the person who must replythrough the court to the divorce application.

When the Court grants a Decree of Divorce, itcan make various ancillary orders in relation to various financial and propertymatters, including Orders relating to thefamily home, maintenance and pensions.When deciding to make any such Orders, theCourt is obliged to try to ensure that properprovision is made for each spouse and for anydependent member of the family. In deciding

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whether to make any such Orders, the Courtwill take into consideration the various factorsset out in Section 20 of the Family Law (Divorce) Act 1996, which include the following:

l The income and capacity, property andother financial resources of the spouses;

l The financial needs, obligations andresponsibilities of each of the spouses;

l The standard of living enjoyed by thefamily concerned before the proceedingswere instituted or before the spousesseparated;

l The age of each of the spouses and thelength of time during which the spouseslived together;

l Any physical or mental disability of eitherof the spouses;

l The contribution which each of thespouses has made or is likely in theforeseeable future to make to the welfareof the family (including financial and non-financial contributions);

l Any income or benefits to which either ofthe spouses is entitled;

l The conduct of each of the spouses, if thatconduct is such that in the opinion of theCourt, it would in all circumstances of thecase be unjust to disregard it (misconductis only taken into consideration by theCourt if the misconduct is considered to be

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gross and obvious; in other words, themisconduct has to be of an extremelyserious nature);

l The accommodation needs of either of thespouses;

l The value to each of the spouses of anybenefit which by reason of the Decree ofJudicial Separation that spouse will forfeit(such as a benefit under a pensionscheme);

l The rights of any person other than thespouses.

The courts shall also have regard to the termsof any separation agreement which has beenentered into by the spouses and is still in force.

What documents do I need to prepare for divorce?

To apply for a divorce in Ireland, fourdocuments must be prepared and submittedto the office of the Circuit Family Court:

1. A Family Law Civil Bill. This documentsets out details relating to you andyour spouse, when and where youwere married, what each of you do fora living, where each of you live, howlong you have lived apart and thenames and birthdates of your children(if any).

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2. A sworn Affidavit of Means which is adocument that lists your assets, income,debts and/ or liabilities, monthlyoutgoings and pension entitlements.

3. A sworn Affidavit of Welfare if thereare any dependent children. Thisdocument sets out details of thechildren such as dates of birth, whereand with whom they live, details regarding their education, health,childcare arrangements and anymaintenance and access arrangements already in place.

4. A document that certifies you havebeen advised of the alternatives todivorce. This is signed by a solicitor, andcertifies that you have discussed thepossibilities of reconciliation, mediationand separation.

Copies of the relevant forms are availablefrom your nearest Circuit Court Office. Someof these forms are also available on the CourtsService website: www.courts.ie under CourtForms> Schedule to the Circuit Court Rules >Schedule B – Forms.

The court rules that govern family lawproceedings can also be viewed on the CourtsService website under: Court Rules > CircuitCourt Rules > Index of Rules > Order 59.

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What does the respondent need to do?

When the respondent is served with a FamilyLaw Civil Bill, he/she should lodge anAppearance. This is a document that indicatesto the Applicant and the Court that therespondent has been served with theproceedings. The respondent is then allowedsome time to file (register papers with thecourt) his or her Defence and Counterclaim,Affidavit of Means and Affidavit of Welfare.

What happens after all the documentshave been filed?

Once all documents are filed by the applicantand respondent, the County Registrar (a courtofficial with powers similar but much morelimited to those of a Judge) will convene ameeting (or meetings) with the peopleinvolved and their lawyers, if they choose tobe represented. These meetings are calledcase progression hearings, and they happenin a court room though with much lessformality than a court hearing. At thesehearings the County Registrar will make surethat both sides identify the issues in disputeand are prepared for hearing. The CountyRegistrar can also set a timetable within whichpreparations must be completed so that thecase is run fairly and efficiently.


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What happens at the hearing?

Once the case is ready for hearing, it will belisted before a judge who will hear both sidesand ensure that the requirements of theFamily Law (Divorce) Act 1996 have been met.If both parties agree at any time during thisprocess to settle the case and reach agree -ment on the terms of their divorce, it can bevery quickly brought before a judge who mustbe satisfied with the settlement agreed.

When a Decree of Divorce is granted, Ancillary Orders can be made by the Judge onissues such as:

l Maintenance

l Access to and custody of children

l Property adjustments

l Sale of property

l Extinguishing of succession rights

l Pensions

l Life Cover


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Interim Orders

It may be quite some time (sometimes up to ayear or longer) before a case comes up forhearing before a judge. In the meantime, andif matters are deemed urgent, either spouse isentitled to apply for Interim Orders which willremain in place until the full hearing. Theseorders can decide such matters as:

l The amount of maintenance (if any) to bepaid pending a full hearing of the case;

l The custody and access arrangements ofthe children pending the full hearing ofthe case;

l Safety/Protection/Barring Orders pendingthe full hearing of the case;

l Freezing an asset, such as a lump sumtermination payment from an employer.


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Foreign Divorces

EU divorce:

A divorce obtained in anyEuropean Union country (exceptDenmark) will generally beautomatically recognised and enforced inIreland under the Brussels II bis Regulationwithout any special procedures.

Non-EU divorce:

A divorce granted by a non-EUcourt (and a Danish court) willonly be recognised in Irelandwhere either of two conditions issatisfied:

l One of the spouses must be domiciled inthat court’s jurisdiction at the time divorceproceedings are issued. It is not necessaryfor the spouse who initiated theproceedings to be domiciled in thatjurisdiction, as long as the other one is.

l If the spouses obtain a divorce in adifferent country from where they aredomiciled, but their domiciliary country(where they are living) recognises thatdivorce, Ireland will recognise it on thisbasis.

Exceptions to recognition of non-EU divorcesare:

l divorces obtained by fraud;

l divorces obtained under duress;

Brussels IIbisRegulation

Domicile &Recognitionof ForeignDivorcesAct 1986,section 5


l divorces obtained under any non-judicialprocess; or

l divorces obtained with some other denialof justice, to be adjudicated on by the Irishcourts.

You should note that each state in the UnitedStates and each territory in Australia is treatedas a separate jurisdiction for the purposes ofrecognising a foreign divorce.

What do I do if I have questions about a foreign divorce?

If you are in doubt, you can applyto the Circuit or High Court toseek a declaration as to thevalidity or non-validity of a non-EU foreign divorce. The RevenueCommissioners can also make suchan application because it is oftenrelevant when it comes to thequestion of inheritance tax.

It must be stressed that Irish law is notconcerned about the foreign laws underwhich a marriage was formed or a divorcegranted in deciding whether to recognise aforeign divorce. The courts here will only lookat the issue of domicile.

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FamilyLaw Act1995,section29


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Domicile

What does ‘domicile’ mean and why is it important?

The concept of ‘domicile’ is quite complicatedlegally as it does not just mean beinghabitually resident or just living in a country.Domicile is in large part about your intentionto remain in a country permanently asopposed to the actual length of time youspend there.

At birth, you automatically get a ‘domicile oforigin’ which is usually in your birth country,even if you may not get citizenship of thatcountry at birth. However, if you move to adifferent country, even if you live there formany years, you will still retain your originaldomicile unless you can prove you intend toremain in the new country permanently.


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Example: After getting married in Paris, James and

Marie moved to Australia ten years ago to find work.

They found jobs, set up home and had two children

there and were happy for many years,

although they always talked about going home to set

up a business. However, three years ago, their

relationship broke down and they divorced. James

returned to Ireland the following year and recently

met a new person whom he wishes to marry.

However, when he presented his papers to the

Registrar of Marriages, he was shocked to discover

that Irish law did not recognise his foreign divorce.

Because he never had the intention of permanently

remaining in Australia, he had never lost his Irish

domicile of origin and therefore could not fulfil the

conditions for recognition. He had to then apply for a

divorce under Irish law, which meant he had to wait

for another year to meet the four-year requirement.

The in camera rule

All cases in the Family Law Courts in Ireland areheard in camera (in private). Therefore,members of the general public are notpermitted to enter the court. The in-camera

rule has changed recently to allow the media tohave limited access to family law hearings andto have limited rights to report on theproceedings.


Legal Aid

You may be eligible for legal aid if you are aperson of moderate means. To qualify for legalaid in civil cases your disposable income and assets must be below a certain limit, there mustbe merit to the case and there must be noother satisfactory way of resolving the problem.After approval, the Legal Aid Board providesyou with the services of a solicitor and, ifnecessary, a barrister. You can apply for legalaid for more than one matter at a time. TheBoard’s offices are called Law Centres and arelocated around the country. For the location ofyour nearest Law Centre, call 1890 615 200.

All those who are granted legal advice and/orlegal aid must pay a fee called a contributionto the Board. The minimum contribution is€30 for legal advice and €130 for legal aid.Law centre staff will advise what a person’sactual contribution will be as each person isassessed on an individual basis.

Before you qualify for legal aid, you must firstsatisfy a means test. Your disposable incomemust be less than €18,000 and your disposablecapital cannot be more than €100,000.

If you are in receipt of allowances, they willbe taken into account and they are deductiblewhen calculating disposable income. Themaximum allowance on childcare facilities ifyou are working is €6,000 per child per yearand the maximum allowance on accom moda -tion costs (e.g. rent) is €8,000 per year. The

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Public Service Pension Related Levy and theUniversal Social Charge are now also con sider -ed and are deductible for the purposes ofassessment.

The value of an applicant’s home and itsnormal contents are excluded when assessingthe value of his/her capital resources(property). If your capital resources exceed€4,000, you must complete a Statement ofCapital.

For further details on financial eligibilityrequirements or for details of otherallowances, contact your local Law Centre. Afull list is available at www.legalaidboard.ie.FLAC has prepared a guide to the state legalaid system which you can download atbit.ly/CLAflacsheet.

Need more information?

Legal information leaflets are also available

from FLAC on a variety of other areas of

law. They are free to download as PDFs

from the FLAC website or in print from your

local FLAC centre or Citizens Information

Centre.


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This publication was supportedand part-funded by the Citizens Information Board

© FLAC – Free Legal Advice Centres, July 2014

LoCall: 1890 350 250 | www.flac.ie

@flacireland fb.me/flacireland

FLAC Mission Statement

FLAC (Free Legal Advice Centres) is a human rightsorganisation which exists to promote

equal access to justice for all.

While every effort has been made to ensure theaccuracy of this leaflet, it is provided for generallegal information only and is not intended as asubstitute for legal advice. The information itcontains is correct as of date of publication. FLACdoes not accept any legal liability for the contentsof this leaflet. People with specific legal problemsshould consult a solicitor.

FLAC is very grateful to Eugene Davy, solicitor whofinalised this leaflet and to Jennifer White BL andHannah-Sioux Daly who helped with earlier drafts.

FLAC offers free, confidential basic legal informationvia its lo-call telephone information line at 1890350 250 and one-to-one legal advice through itsnetwork of voluntary advice centres countrywide –www.flac.ie/help

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20140707164608

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