DIY Divorce and Divorce by Consent-What You Should Know

diy divorce

Getting a divorce can be expensive, but it doesn’t have to be. When I am asked by a potential client, “how much will a divorce cost?”, my answer is always the same.

It depends on how much agreement there is between the parties, how many times we will be required to go to Court, how much correspondence will be exchanged between the parties or their solicitors; in short, how much time will be involved.

Because time is money and going to Court to fight over various aspects of the break up is time consuming and, therefore, costly.

Disputes can be bitter, particularly when it comes to issues like custody, maintenance, property, access, pensions, etc. Also, if there are other “new” partners involved it can be harder to keep things cool and civil.

Divorce by Consent

However, if the parties are agreed on all aspects of the divorce a divorce by consent can be obtained at a fraction of the cost of a contested divorce.

There are two circumstances where this can commonly occur:

  • where the parties have not been married a long time and there are no children and no jointly owned property and
  • where the parties have been married a long time but the children, if any, are grown up and the parties are agreed about going their separate ways and have arrangements agreed about joint assets/property/living arrangements.

In addition to these 2 types of circumstances, the parties themselves can agree, even if there is joint property or minor children.

Documents required

To get the ball rolling to obtain your divorce you will need some basic legal documents for Court.

These will include:

  1. a Family Law Civil Bill
  2. an Affidavit of Means
  3. an Affidavit of Welfare if there are dependent children.

These will need to be filed in Court and served on the other spouse.

You will then need

  1. Affidavits of service
  2. a Letter of Consent to the divorce
  3. a Notice to Pension Trustees, if there is a pension held by one or both parties
  4. a draft Pension Adjustment Order
  5. a Notice of Motion for Judgment
  6. an Affidavit of Service of Notice of Motion.

Once the Notice of Motion for Judgment is filed in the Court office a date for the hearing of that motion, and the granting of the divorce, will be granted.

Requirements for a divorce

You can read about the requirements in greater detail here.

In summary,

  1. you must have lived apart from each other for 4 of the last 5 years
  2. there is no reasonable prospect of reconciliation
  • there is proper provision made for the parties and the dependent children, if any.

Also, at least one of the spouses must have lived, or been domiciled, in Ireland in the 12 months prior to commencement of proceedings.

How quickly you will get your divorce will depend on where the proceedings are brought. The Dublin Circuit is the quickest as the Circuit Court sits every day to deal with divorce/judicial separation.

Outside of Dublin the sittings are much less frequent.

The proceedings can be brought where one of the parties resides or carries on a business, occupation, or profession.

You will need an original marriage certificate.

DIY Divorce

There are businesses which provide a service to allow you obtain a consent divorce.

It appears that they prepare the necessary documents and legal papers for you, based on your replies to their questions about your circumstances, and assuming both parties are agreeable to the divorce and its terms.

You then go to Court to file these papers and ultimately you go to Court to obtain your divorce.

If you and the other spouse are happy to do this, and there are no legal issues that you need advice on, this type of service might be suitable for you and what you want.

However, if you need legal advice, or would have concerns about going to Court yourself, or would have concerns about the procedures adopted in Court, or have any second thoughts about doing it yourself you can always instruct a solicitor to get professional advice and help.

The Family Mediation Service

The Family Mediation Service is a free service run by the Family Support Agency.

It is a completely free service and provides mediation services to couples, both married and unmarried, who are separating or whose relationship has broken down.

Professional, trained mediators help the couple to negotiate their own agreement to deal with

  • The family home and property issues
  • The children
  • Pensions and
  • Any other issues that arise in a separation.

The accredited and professional mediator maintains a neutral position and does not take sides but seeks to help the couple to reach agreement for separation.

In order to avail of the service it is important that both parties are agreeable and contact the mediation service separately.

Mediation sessions

Generally a session will last for around 1 hour and there will be 3 to 6 sessions in the mediation. Ultimately a good outcome is to arrive at a written agreement concerning all of the issues which can then be brought to a solicitor who can draft a legally binding separation agreement.

Mediation is completely confidential and there are a number of full time and part time offices around the country.

Take a look at the legal aid board site to see where these are located and learn more about the mediation service.

 

The Family Mediation service publish a number of very helpful booklets which you can access on their website above which deal with many of the important issues of separation such as

  • Financial matters
  • Children
  • Parenting plans.

It is a statutory requirement (Judicial Separation and Family Law Reform Act, 1989, sect. 5 and 6) for a solicitor to advise couples who are separating and who wish to apply for a Judicial Separation to

  1. Discuss reconciliation and
  2. Discuss mediation and
  3. Coming to a negotiated settlement by way of a separation agreement or deed.

The Family Mediation Service, as well as being professional and free, can have the additional benefit of reducing your legal costs when it does come to having a separation agreement drafted or when seeking a Judicial Separation or divorce.

Being able to present to a solicitor with many of the major issues agreed can make life easier and more cost effective for all concerned.
By Terry Gorry
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How to Get a Divorce in Ireland-Divorce Law Basics

Divorce in Ireland is provided for by the Family Law (Divorce) Act 1996 which allows both the Circuit Court and High Court to grant decrees of divorce.

divorce-law-ireland

The Circuit Court only has jurisdiction to grant a divorce decree where the property concerned has a market value of less than €3M.

Grounds for divorce

The grounds for divorce under the Family Law (Divorce) Act 1996 are threefold:

I.        When divorce proceedings commence, the parties must have lived apart for at least 4 of the previous 5 years (where this occurs and a couple have lived together for a short period(s) of time to attempt to reconcile, a divorce decree can still be granted)

II.      There is no reasonable prospect of reconciliation (the Court must be satisfied on this ground)

III.     The Court must make proper provision for the spouses and any dependent members of the family (a dependent member of the family includes children born to both spouses, or one spouse if adopted by both spouses or by one spouse, or to whom either parent is ‘loco parentis’)

You will see from the above conditions that “fault” on the part of one or other party is irrelevant and it is worth noting that “living apart” is possible in the eyes of the Courts even if the parties are living under the same roof.

This will require considerable proof for the Court though before a decree is granted and it is important when having deeds or agreements of separation drawn up that they specify when the parties have commenced living apart.

The notion of living apart has been considered in some detail by the Courts and it has been held by the High Court that where a couple claim to be living apart, even though under the same roof, the court will only decide this issue based on the circumstances of each case.

‘Living apart’ has been held by the Courts to be a ‘state of affairs’ rather than just a physical living apart and the converse is also true: a couple could be living apart even though living under the same roof.

It is important therefore that when couples are having deeds of separation drafted that it states clearly the date on which they started living apart.

It is noteworthy too that any correspondence, written or oral, involving attempts at reconciliation or mediation with a third party is not admissible as evidence in Court.

Effects of divorce decree

The principal effects of a divorce decree in Ireland are

i.        The marriage is dissolved and both parties are free to remarry

ii.       The rights of both parents to continue to be joint guardians of children of the union continues

iii.      A divorced person is no longer a spouse and does not continue to enjoy the benefits of the Succession Act 1965 or the Family Home Protection Act 1976

iv.      There are tax implications

v.       A decree of divorce does not prevent either spouse from being entitled to a widow/widower’s pension or the one parent family allowance or the deserted wife’s allowance and benefits.

Just as in Judicial Separation proceedings both parties must be advised by their solicitors to discuss the possibility of reconciliation, mediation and an agreement in writing between the parties rather than court proceedings.

These obligations on a Solicitor are legally binding and if not carried out neither a Judicial Separation decree or one of divorce will be granted by the Court.

Divorce and Judicial Separation Procedure in the Circuit Court

Both the Circuit Court and High Court have jurisdiction to hear applications for divorce and judicial separation. However any case where the assets are less than €5 million should be heard in the Circuit Court.

Family Law Civil Bill

All proceedings for divorce, judicial separation, relief after foreign divorce or separation outside the state, declarations of parentage, declarations of marital status, nullity are commenced by issuing a Family Law Civil Bill in the County Registrar’s office of the appropriate County. This choice of venue can be the county where either party to the proceedings ordinarily resides or carries on business.

Every Family Law Civil Bill must set out the relief being sought and the grounds relied on for seeking that relief. It must contain certain information such as the date and place of marriage, the length of time the parties are living apart, details about any children of the marriage, information about the family home and any other property, the occupation of the parties, etc.

The Family Law Civil Bill, along with a section 5 or 6 certificate, an affidavit of means and affidavit of welfare (where appropriate) are filed in the Circuit Court office and then served on the other party.

Appearance and Defence

The respondent then has 10 days within which to enter an appearance and a further 10 days to enter a defence as well as an affidavit of means and an affidavit of welfare. However these time limits are unrealistic and further time will be taken in practice.

Fast Track Divorce

The Circuit Court Rules do provide for a “fast track divorce” where both parties are agreed in relation to all of the reliefs being sought. This involves the respondent filing a “consent defence” and an application to Court for a judgment by consent.

There is also the possibility of simply obtaining a decree of divorce where no ancillary relief is sought.

Case Progression

A case progression summons will issue to both parties when the respondent files and serves a Defence to the Family Law Civil Bill.

Case progression is the management of a family law case, generally concerning divorce or judicial separation, before it goes to trial. The purpose is to attempt to keep costs down for all parties and to ensure the best use of the Court’s time by having the parties deal with issues before going to hearing.

Case progression generally takes place in the Circuit Court and is overseen be the County Registrar.

The County Registrar oversees the preparation of cases pre-trial and decides what steps need to be taken by the parties before the case can be heard in Court by a Judge.

The County Registrar can give a range of pre trial orders and directions to the parties such as

  • Vouching items in an affidavit of means
  • Identifying the issues in dispute between the parties.

How Does Case Progression Work?

Both parties, after proceedings have been issued and an appearance and/or defence entered, will be summonsed to a case progression hearing. At the same time they will be given a case progression questionnaire which must be completed before going before the County Registrar on foot of the case progression summons.

This questionnaire allows the County Registrar and the parties to identify the issues which are in dispute and which are agreed. This hearing before the County Registrar also helps identify whether further pleadings are needed and deals with discovery, pension relief notices, expert reports, and so on.

The purpose is to sort out as much as possible before the case goes to trial before a Judge.

Trial

Once all pleadings have been exchanged a notice  of trial is issued and served and a date will be fixed for the hearing of the case.

Affidavit of Means

Where financial relief is being sought by one of the parties, the rules provide for each party to file an affidavit of means.

However in Dublin in where no financial relief is being sought, an affidavit of means is not required by the Family Law office.

An affidavit of means is divided up into 5 schedules listing

  • The assets of the party
  • The income
  • Debts and liabilities
  • The outgoings of the party
  • Any pension scheme which exists.

Affidavit of Welfare

An affidavit of welfare must be sworn and filed where there are dependent children.

The affidavit of welfare must give details of children born to the applicant and the respondent or adopted by them and details of other children of the family or to which either of the parties stand in loco parentis.

Interim Applications

Interim applications can be made by either party by way of notice of motion and affidavit.

Costs

The Court can make any order it sees fit as regards costs.


By Terry Gorry
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The Recognition of Foreign Divorces in Ireland

The recognition of foreign divorces in Ireland is governed by two principle pieces of legislation:

1. The Domicile and Recognition of Foreign Divorces Act, 1986 and
2. The Brussels II regulation of 2001, later amended by Brussels II bis (See also the Practice Guide for the application of the new Brussels II regulation).

These laws govern divorces post 1986; the law concerning divorce before 1986 will be common law rules.

The Domicile and Recognition of Foreign Divorces Act, 1986

This Act covers divorces that were applied for post 1986 and the essential thrust of the legislation is that if either spouse was domiciled in the jurisdiction granting the divorce at the date of commencement of proceedings then that divorce will be recognised in Ireland. (Domicile is living in a place with the intention of residing in that place permanently).

See section 5 of the Domicile and Recognition of Foreign Divorces Act, 1986.

Section 29 Family Law Act, 1995

If your circumstances are such that failing to prove that one of the parties was domiciled in the jurisdiction granting the foreign divorce then you might consider section 29 of the Family Law Act 1995.

This allows an application to be made in the Circuit Court or High court for a declaration that a foreign divorce is entitled to be recognised in Ireland. In fact you can seek various declarations concerning divorce, legal separations or annulments granted in foreign Courts.

However, do note that this procedure does not cover situations covered by the Brussels II regulation which states that foreign divorces in Brussels II countries are automatically entitled to recognition in Ireland.

United States Divorces

Generally each State or jurisdiction is treated separately for the purposes of recognition of a foreign divorce and this is very pertinent re the United States of America and American divorces.

United Kingdom Divorces

However the United Kingdom is an exception to this rule insofar as the UK is considered to be one state. The effect of this is that a divorce granted anywhere in the UK will be recognised in Ireland provided that one of the spouses is domiciled anywhere in the UK.

Exceptions to the recognition of foreign divorces in Ireland

There are a number of circumstances where a foreign divorce will not be recognised in Ireland including:

1. Non Judicial Divorces
Generally the divorce will have to have been obtained legally/judicially in the foreign jurisdiction.

2. Duress
If a spouse is pressurised or put under duress to apply for a divorce the subsequent divorce will not be recognised in Ireland.

3. Fraud
If a foreign divorce is obtained by fraud it will not be recognised in Ireland as a valid divorce decree.

4. Denial of justice
This is a wide, catch all type of category which affords considerable discretion to Irish Courts in recognising (or not) foreign divorces.

Brussels II BIS

This European Council Regulation replaced the original Brussels Regulation which provided for recognition of divorces, separations and nullities granted in other EU jurisdictions.

Brussels II BIS will apply where one of the spouses resides in or is a national of another EU member state and the principal aim of this regulation is to recognise EU divorces on an EU wide basis. (Note: the question of domicile still applies between Ireland and the UK as outlined above)

In summary Brussels II BIS states that judgments given in competent courts in the EU in relation to separation, divorce or annulments should be recognised in all EU member states. However Brussels II BIS goes a step further in providing a voice for the child in these proceedings and ensures that if the child is not given an opportunity to be heard then any judgment under Brussels II Bis will not be valid or recognised.
Brussesls II Bis came into effect in Ireland in 2005.

Here’s an excellent website which provides a lot of information about divorce and separation in all European countries.

Maintenance and foreign divorces

There are now procedures in place in Ireland to allow the enforcement of maintenance orders between countries thanks to the Rome convention and the New York convention and the Maintenance Act, 1994 coming into law in Ireland.

In addition the Family Law Act, 1995 provides for the application in Ireland for certain reliefs arising from a divorce obtained abroad.

Jurisdiction and service

The question of service of proceedings in foreign divorce proceedings is a critical one. Brussels II Bis provides that where there is a dispute as to which court will have jurisdiction that the first court in which the documents commencing proceedings is lodged will have jurisdiction. This can give you a significant advantage in your case, especially from a costs perspective.

Problems Arising from Non Recognition of Foreign Divorces

The big problem in relation to non-recognition of a foreign divorce is when you remarry-your new spouse may not have any entitlements as set out in the Succession Act, 1965 while your old spouse can benefit substantially.

However you can seek a Court Order in the Circuit Court in Ireland recognising your foreign divorce; if granted, your divorce will be recognised as valid in Ireland.
By Terry Gorry
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Court Orders on Separation and Divorce

The Family Law Courts in Ireland have considerable powers to make additional orders, called ancillary orders, in divorce and judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 , the Family Law Act, 1995 (judicial separation proceedings) and the Family Law (Divorce) Act, 1996 (divorce proceedings).

court-orders-divorce

The main factor determining these orders is the need to make “proper provision” for spouses and dependent members of the family.

The Courts also have the power to make preliminary orders in relation to judicial separation and divorce proceedings and these will be granted before the full hearing involving divorce or judicial separation.

An example of such a preliminary order is called a maintenance pending suit order which allows for maintenance payments to be made prior to the hearing of the divorce or Judicial separation proceedings. Domestic violence can also be dealt with through a preliminary order.

Custody and access orders

Custody and access arguments can be dealt with by way of preliminary order also as well as at the substantive hearing of the proceedings. Remember though that orders concerning access and custody can be obtained even where divorce or judicial separation proceedings are not contemplated under the Guardianship of Infants Act 1964.

It is worth noting also that even where divorce takes place a divorced person can still avail of relief under the Domestic Violence Act, 1996 even though ordinarily the person would not be considered to be a spouse in the eyes of the law once the decree of divorce is granted.

Financial Provision on Marriage Breakdown

Financial provision can be made on the breakdown of a marriage under the following broad headings:

  • maintenance

  • property

  • succession.

Maintenance

The common law duty for spouses to maintain one another is continued in the legislation covering marital breakdown and survives the ending of the marriage. The liability to maintain a former spouse only ends when that spouse dies or remarries.

This duty continues despite the execution of a separation agreement or an order of judicial separation or divorce.

Three types of maintenance order can be made under the Family Law Act, 1995:

  • a periodical payments order

  • a secured periodical payments order

  • a lump sum payment order.

The Family Law Act, 1995 also allows a court to make an attachment of earnings order at the same time as the making of a periodical payments order without any default in payment having taken place.

All ancillary relief orders will be granted by the Court in the light of ‘proper provision for each spouse and for any dependent member of the family…

Learn more about maintenance orders here.

Property-The Family Home

The Family Home Protection Act 1976 describes the family home as “primarily a dwelling in which a married couple ordinarily reside”.

When a marriage breaks down in Ireland and divorce or judicial separation proceedings are instituted the family home will loom large in considerations as for many couples it is the principal or only asset that they have.

Property Adjustment Orders and Preliminary Orders

Courts can make property adjustment orders in separation or divorce proceedings; in fact they can also make preliminary orders in respect of the family home which are orders which predate the hearing of the legal proceedings.

Courts have the power to make the following orders on separation or divorce :

I.    Preliminary orders (effective until the hearing of the judicial separation or divorce proceedings)

II   Property adjustment orders

1. The property to be transferred from one spouse to another or to another person

2. The reduction or extinguishment of any interest that a spouse has in the property

3. The settlement of the property to either spouse

However no order can be made in favour of a spouse who remarries and an application for a property adjustment order must be made during the lifetime of the other spouse.

The Courts can also order the sale of the family home but cannot do so if one of the spouses remarries and is living in the home with his/her new spouse.

All property adjustment orders can be varied except an order directing the sale of the family home and this has been carried out.

Property adjustment orders can also be made in respect of all types of property, not just the family home.

Succession rights

A spouse has an entitlement under the Succession Act, 1965 to one half (if there is no children) or one third (if there is children) of the deceased spouse’s estate.

However the Judicial Separation and Family Law Reform act 1989 allowed for the first time the extinguishment of the share to which the spouse would be entitled under the Succession Act, 1965 but only provided proper provision has been made for the spouse losing their succession entitlements.

This of course only applies in Judicial Separation cases as in divorce cases the “spouse” is no longer a “spouse” after divorce and loses Succession Act entitlements automatically.

However the Court will generally make allowance for this loss by making what it considers the necessary ancillary orders on granting a decree of divorce.

Pension adjustment orders

The Family Law Act, 1995 allows the making of a pension adjustment order which aims to allow the distribution of pension benefits by disregarding the terms of the pension scheme and either party can apply for this order.

However if you remarry you are prevented from applying for such an order.

It is important to note that any attempt by a separating couple to divide the benefits of a pension scheme between them will not work and will have no effect. Regardless of what an individual member of a pension scheme wants, the trustees of the scheme are obliged to be bound by the terms of the scheme.

If the parties come to agreement in relation to the pension then they will need an order of Court to effect that agreement and this can only be done after the granting of a decree of divorce or judicial separation by way of an order of Court.

If separating couples execute a deed of separation between themselves then they are depriving the Court of making an order in respect of the pension.

The recommended procedure would be to agree the terms of agreement between spouses, issue proceedings under the Judicial Separation and Family Law Reform Act, 1989 and an application to have the settlement terms made an order of Court and the relevant pension adjustment order made on consent.

Factors the Court Considers When Making Orders on Divorce and Judicial Separation

The factors the Court will consider when making these orders are

I. The actual and potential financial resources of both spouses

II. The actual and likely financial needs, obligations and responsibilities of both spouses

III. The standard of living of the spouses before the separation or divorce

IV. The length of marriage and the ages of the spouses

V. Spousal contributions-this is increasing in importance in the Court’s considerations and looks at not just financial contributions but time spent looking after home and family

VI. Earning capacity or lack of it due to time spent in the home due to marital responsibilities and the lack of future earning capacity due to the sacrifice of career made during marriage

VII. Statutory entitlements-any benefit or income either spouse is entitled to in law

VIII. Conduct-this is not a hugely important factor unless the conduct is egregious

IX. The accommodation needs of both spouses

X. Any separation agreement entered into by the spouses and which is still in effect

All of these factors will be considered under the overarching goal of attempting to ensure proper provision is made for both the spouse and any dependent members of the family.

It is noteworthy that even where there is a full and final settlement clause in the divorce the Courts can still make a change to any maintenance order as in Irish law there is really no “clean break”.

Procedure in the Circuit Court and High Court

The Circuit Court and the High Court have jurisdiction to hear

  • applications for divorce

  • decrees of judicial separation

  • applications for orders under the Family Law Act, 1995

  • applications for decrees of nullity.

Most of these proceedings will be commenced with a Family Law Civil Bill (Circuit Court) or Family Law Summons (High Court).

Where financial relief is sought it will be necessary to file an Affidavit of Means. Where there are dependent children involved, regardless of whether financial relief is sought, an Affidavit of Welfare must be sworn and filed.

Discovery

Discovery is the procedure whereby both parties obtain full and detailed information about the other’s income, debts, assets, and liabilities. There are strict rules in the Circuit Court and High Court in relation to discovery.
By Terry Gorry
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