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.
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.
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.
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 can be made by either party by way of notice of motion and affidavit.
The Court can make any order it sees fit as regards costs.
By Terry Gorry