Category: Divorce

Categories
Divorce

Getting a divorce in Ireland-the steps you must take

judicial-separation

If your marriage has broken down irretrievably then divorce is one of the options that may be open to you.

Firstly, you need to have been living separate and apart from your spouse for two of the last three years.

Then, you should consider trying mediation and getting legal advice. 

If you still decide that you want a divorce the next step is for the applicant to get the necessary papers in order. Your solicitor will do this for you if you engage the services of a solicitor but you can do it yourself if you choose.

This will be a more straightforward matter if the other party is agreeable to the divorce. If the matter is contested then you should consider instructing a solicitor to act on your behalf and look after all the paperwork and communication with the other party and his/her solicitor.

The applicant will need

  • family law civil bill, 
  • affidavit of means, 
  • affidavit of welfare, 
  • declaration from solicitor about the benefit of mediation

The legal proceedings will need to be commenced by issuing the family law civil bill out of the Circuit Court office. This involves sending 3 copies of documents to the court office for issue.

The next step is to serve the other party (respondent) by registered post or in person. You will need an affidavit of service after you have properly served the other party.

Then, the respondent enters an appearance.

If the respondent agrees to the divorce he/she sends a letter to the applicant confirming agreement to divorce on agreed terms. He/she must also send an affidavit of means and welfare.

If the respondent disagrees he/she must serve a defence and affidavit of means and welfare and file it in the court office. The respondent must also complete an affidavit of service.

If there are agreed terms between the parties about the divorce then you will need to file a motion to obtain a date to have a judge rule the divorce on the agreed terms.

If there is disagreement and it is a contested divorce a case progression hearing before the county registrar will be needed to identify the issues and check all the paperwork is in order before getting into the judge’s list.

If there is no response at all from the respondent the applicant can proceed to obtain a divorce in his/her absence.

Then, the parties will need to attend the court hearing. The Judge will ask the applicant, and sometimes the respondent, to give evidence. The Judge must ensure proper provision for dependent children and all other matters are dealt with to the Judge’s satisfaction. If so, the divorce will be granted.

You will then receive the court order of divorce from the court office.

Categories
Divorce Separation

Pension adjustment orders on divorce and separation-what you should know

The benefits payable arising from a pension scheme can only be paid in accordance with the terms of the scheme. This means that an individual member cannot change the terms or pay-outs under the scheme, even if the trustees agreed (which will not be the case).

Therefore, a deed of separation between separating spouses that purports to make changes to the pension scheme will simply not work. The only way that a scheme can be changed is with a pension adjustment order (PAO) granted by a Court.

This is done pursuant to section 12 of the Family Law Act, 1995.  

Pension adjustment orders

If the parties to a failed marriage agree terms on which they will divorce they will need a pension adjustment order from the Court to change the retirement or contingent benefit to which one of the parties is entitled under the pension.

The powers of a Court in this regard are contained in section 12 of the Family Law Act, 1995 and section 17 of the Family Law (Divorce) Act, 1996.

Pension adjustment orders provide a further mechanism by which a court can try to ensure proper provision is made for the spouses and dependent children in a divorce.

A pension can be viewed as an asset of either party and can be divided or transferred from one party to the other. It can also be used as a way of ensuring maintenance is paid by one party to the other.

The power to make a pension adjustment order is only available after the granting of a decree of judicial separation or divorce. A separation agreement cannot make any change to a pension.

Any court application will require the trustees to be put on notice. If they are, and their agreement to an order is obtained in advance, the costs of having trustees attend court will be avoided.

The recommended practice, therefore, is for the parties to agree the form of pension adjustment order with the trustees of the pension. The trustees will give a letter approving the draft PAO which will then be handed into Court when the application is made. A court will require details of the pension scheme and the trustees of the scheme.

Different types of pension scheme

There are two broad categories of pension scheme:

  1. Occupational pension schemes; and
  2. Self-employed schemes

Occupational pension schemes

Occupational pension schemes can be broken down into

  1. Defined contribution schemes and
  2. Defined benefit schemes

Where financial relief is being sought pension details should be provided in an affidavit of means which should set out the nature of the scheme, benefits payable, normal pensionable age, and period of reckonable service.

Defined contribution scheme

A defined contribution scheme is one where the employer and/or employee pay a percentage of the employee’s salary into the scheme. This is then invested by the trustees.

Self-employed schemes generally fall into this category.

Defined benefit scheme

This type of scheme where a specific level of pension is supposed to be paid to the employee on retirement, usually a percentage of the employee’s salary. The pension scheme operated by the Civil Service would be an example of such a scheme.

The pension adjustment

There are two aspects to pension adjustment:

  1. Ear-marking and
  2. Pension splitting

Ear-marking means a portion of the pension benefit should be paid to the other spouse.

Pension splitting means that a percentage of the retirement benefit of a pension is used to provide a separate pension for the other spouse. This could be provided in the same pension scheme, or a separate one.  

A period and percentage

A pension adjustment order in respect of a retirement benefit will specify two things, at least:

  1. A period and
  2. A percentage

The period is the period of reckonable service of the member prior to the divorce or judicial separation. This should state the commencement date and cessation date.

The percentage will be the percentage of the mount of the benefit to be paid to the other spouse on foot of the order. This can run from .001 per cent to 100 %.

It is worth noting that a pension adjustment order can only be made in favour of a spouse or a dependant but cannot be made in favour of a spouse who has remarried. An application cannot be made for a pension adjustment order in respect of a contingent benefit after 1 year has passed after the divorce or judicial separation.

Nominal pension adjustment orders

The law does not make provision for a “nil” order so the usual thing is a nominal pension adjustment order for a period of one day, at the beginning of the period of reckonable service, a percentage of 0.01 per cent or less.

Pension splitting

Where an order is made regarding a retirement benefit payment could commence immediately if the retirement benefit had already commenced being paid to the member spouse. This would apply where the member spouse had retired.

Where the member spouse has not retired, and the payment of retirement benefit has not commenced, the applicant spouse has 2 options:

  1. She may leave it in the pension scheme, and it will become payable when the member spouse retires
  2. The applicant spouse can have an amount of money transferred from the scheme, which would equal the value of the designated benefit

A spouse who has obtained a pension adjustment order in respect of a retirement benefit may apply to the trustees for pension splitting at any time from the date of the order to the date of commencement of the payment of the designated benefit. The trustees must value the percentage of the retirement benefit for payment to the applicant spouse.

Once this is ascertained the trustees can

  1. Hold the transfer amount within the scheme for the benefit of the applicant spouse or
  2. Pay the transfer amount to another pension scheme or approved arrangement-for example, a buyout bond

Any applications to court in respect of a pension adjustment order, or any other order regarding a pension, obliges notice to the trustees of the scheme.

Once an order is made by court in respect of a pension the order should be served on the trustees of the pension scheme.

Conclusion

Pension adjustment orders can be a complex, complicated area of divorce or marriage breakdown. It is often the case that lay litigants can manage to obtain a divorce without the aid of legal assistance but require it for the subsequent pension adjustment order applications.

Categories
Divorce Separation

Mediation Agreements in Family Law

family-mediation-service

Mediation agreements are negotiated agreements between the parties in dispute. They are in common use when it comes to separating couples when the relationship has broken down and the parties seek to do the sensible thing and negotiate certain terms to cover matters such as property, maintenance, custody, access, and so forth.

Mediators guide the parties to their own agreement but do not give legal advice and the mediated agreement is not legally enforceable unless an extra step is taken.

The Mediation Act 2017 is important in this connection, however, as section 11(2) of the Mediation Act 2017 states

11. (1) The parties shall determine—

(a) if and when a mediation settlement has been reached between them, and

(b) whether the mediation settlement is to be enforceable between them.

(2) Notwithstanding subsection (1) and subject to subsection (3), a mediation settlement shall have effect as a contract between the parties to the settlement except where it is expressly stated to have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties.

Mediated agreements musgt be ruled in court in a divorce or judicial separation. However, the court retains its discretion as to whether the agreement makes proper provision and will not rule such an agreement in certain circumstances set out in section 11(3), where

(a) the mediation settlement—

(i) does not adequately protect the rights and entitlements of the parties and their dependents (if any),

(ii) is not based on full and mutual disclosure of assets, or

(iii) is otherwise contrary to public policy,

or

(b) a party to the mediation settlement has been overborne or unduly influenced by any other party in reaching the mediation settlement.

The Mediation Act 2017 and solicitors

Section 14 of the Mediation Act, 2017 sets out the obligations on solicitors under the act as follows:

Practising solicitor and mediation

14. (1) A practising solicitor shall, prior to issuing proceedings on behalf of a client—

(a) advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings,

(b) provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services,

(c) provide the client with information about—

(i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and

(ii) the benefits of mediation,

(d) advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk, and

(e) inform the client of the matters referred to in subsections (2) and (3) and sections 10 and 11 .

(2) If a practising solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted shall be accompanied by a statutory declaration made by the solicitor evidencing (if such be the case) that the solicitor has performed the obligations imposed on him or her under subsection (1) in relation to the client and the proceedings to which the declaration relates.

(3) If the originating document referred to in subsection (2) is not accompanied by a statutory declaration made in accordance with that subsection, the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor concerned to comply with subsection (1) and provide the court with such declaration or, if the solicitor has already complied with subsection (1), provide the court with such declaration.

(4) This section shall not apply to any proceedings, including any application, under—

(a) section 6A, 11 or 11B of the Guardianship of Infants Act 1964 ,

(b) section 2 of the Judicial Separation and Family Law Reform Act 1989 , or

(c) section 5 of the Family Law (Divorce) Act 1996 .

Solicitors need to ensure clients know that mediation is a voluntary process to arrive at a negotiated solution for the parties. Mediation agreements are intended to be binding but it is advisable that any such agreement is not legally binding until it is put into a legal format. For this reason both parties should be advised and encouraged to obtain legal advice before signing the concluded agreement.

The Law Society advises its solicitors to state that such agreements are not legally binding until further steps are taken to give it binding legal effect. Solicitors are advised to insert the following clause in the agreement:

 “We are signing the mediation settlement in recognition of completion of our mediation. We understand that, in signing this, we are not entering into a legally binding and enforceable agreement, for which more steps must be taken to give binding effect to our mediation settlement.”
In summary, the Mediation Act 2017 provides that the mediation agreement shall have effect as a contract between the parties unless expressly stated to be otherwise. The Law Society recommends the clause above to ensure this is the case.

Categories
Divorce

Living Apart for Divorce Time Reduced to 2 Years

diy divorce

The law dealing with divorce in Ireland is to change from 1st December 2019.

Part 1 and part 2 of the Family Law Act 2019 will come into effect on 1st December 2019.

The Family Law act 2019 reduces the time that the parties must be living apart in order to obtain a divorce. The minimum living apart period will be 2 years out of the last 3 years; it was necessary to live apart for 4 out of the previous 5 years.

The act also gives statutory certainty to what it means to be living apart from the perspective of getting a judicial separation or divorce.

Part 3 of the act, which is not to commence yet, will deal with the effects of a no-deal Brexit, if it occurs, and will deal with the impact of a no-deal Brexit on the recognition of UK divorces and judicial separations in Ireland.

You can read the Family Law Act 2019 here.

Categories
Divorce

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.

In short, the more agreement there is between the parties the cheaper and less stressful it will be for all concerned.

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 three 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 and
  • where the parties simply recognise that the marriage is over and the smartest thing to do is not engage in bitter fights and to move on with their lives.

Circuit Court rules

The Circuit Court rules for family law are set out here on this page. So if you are seeking a judicial separation or divorce the steps to be taken are those set out here.

These rules also contain the rules for claiming a nullity, for claiming relief after foreign divorce or separation, for a declaration of marital status, for property adjustment orders and other family law orders are claimed.

Rules 34 and 35 provide for divorce to be granted by notice of motion in default of appearance and/or defence and for the granting of divorce on agreed terms.

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 (this has now changed to living apart for 2 of the last 3 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.

Categories
Divorce Non Marital Family Separation

The Family Mediation Service

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
Google+

Categories
Divorce

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.

The vast majority of divorces will be granted in the Circuit Court.

The Circuit Court only has jurisdiction to grant a divorce decree where the property concerned has a market value of less than €3M but the parties can agree that the Circuit Court will have jurisdiction even if the property involved exceeds €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.

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

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. (Here’s the form the family law civil bill should take).

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.

Motion for Order in agreed terms

35. (1) In any case in which the parties are agreed in respect of all of the reliefs being sought, the Applicant or the Respondent may, subject to the provisions of the following sub-rules of this Rule, by notice of motion, to be served on the other party and, where relief pursuant to section 12 and/or 13 of the 1995 Act and section 17 of the 1996 Act is sought, on the trustees of the pension scheme concerned, not less than 14 clear days before the hearing, apply to the Court for judgment in agreed terms.

(2) An application mentioned in sub-rule (1) shall, unless the Court otherwise directs, be grounded upon:

(i) an affidavit exhibiting the agreed terms, and
(ii) an affidavit or updated Affidavit of Means of each party, sworn in each case not earlier than six months before the date on which the motion is issued.

(3) On the hearing of the application the Court may, upon hearing such evidence, oral or otherwise, as may be adduced:
(i) give judgment in the terms agreed between the parties, or
(ii) adjourn the application and direct the attendance of a party or other person, or the giving of further evidence on the application, as the Court may require, or

(iii) give directions in relation to the service of a Notice of Trial or Notice to fix a date for Trial.

(4) Where an agreement or consent to the making of an order under this rule is given in writing by a party who does not intend to appear on the hearing of the motion, such agreement or consent shall be verified on affidavit or otherwise verified or authenticated in such manner as the Court considers sufficient.
(5) Where an order to be sought under this rule includes an order for pension relief, a draft of such order which has, so far as the pension relief sought is concerned, been served on the trustees of the pension scheme in question, shall be handed into Court on the hearing of the application.

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.(Here is the case progression questionnaire).

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 but generally each party pays their own costs.

Here are the Circuit Court rules regarding family law.

By Terry Gorry (Contact)

Categories
Divorce

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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Divorce Separation

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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