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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