1. The Options
the breakdown of a marriage, spouses are often left bewildered as to their
options and rights. Recent legislative changes however, have greatly increased
the number of options open to spouses following marital breakdown. A family law
solicitor will go through each option in detail to ascertain which route is
most appropriate for them. The options include:
This is simply where the spouses no longer cohabit with one another and no
legal action is taken in order to take account of their changed circumstances.
A Deed of Separation is a document that may be drawn up and executed by the
parties to a marriage, where that marriage has broken down and where the
parties do not wish to have recourse to the Courts for the purpose of agreeing
the terms of the breakdown. A fundamental provision of every separation
agreement is an agreement that the parties will live apart. Usually a Deed of
Separation will make provision for custody, access to children, maintenance,
division of matrimonial property and Succession Act rights. The terms will be
committed to writing and signed by both parties.
possible to have a Deed of Separation made a rule of court, if it contains a
provision relating to the payment of maintenance. If the Deed is made a rule of
court the spouse who is receiving the maintenance can have the maintenance paid
through the District Court Office and can then avail of the District Court
enforcement mechanism for the recovery of maintenance arrears. If the Deed of
Separation is made a rule of court the spouses are also afforded the remedy of
contempt of Court where a breach of the agreement occurs.
A Deed of
Separation is a bar to proceedings for Judicial Separation however it does not
act as a bar to Divorce proceedings but the Court is required in determining an
application for a Divorce to have regard to the terms of a Deed of Seperation
entered into between the parties and which is still in force.
Spouses may seek a Judicial Separation through the Courts. There are six
grounds upon which the Court may grant a Decree of Judicial Separation:
1. The spouse has committed adultery.
2. The spouse has behaved in such a way that the Applicant cannot reasonably be
expected to live with the Respondent.
3. There has been desertion by one spouse of the other spouse for a continuous
period of at least one year immediately preceding the date of the application.
4. The spouses have lived apart from each other for a continuous period of at
least one year immediately preceding the date of the application and the
Respondent consents to a decree being granted.
5. The spouses have lived apart from one another for a continuous period of at
least three years immediately preceding the date of the application.
6. The marriage has broken down to the extent that the court is satisfied in
all the circumstances that a normal marital relationship has not existed
between the spouses for a period of at least one year immediately preceding the
date of the application.
granting a Decree of Judicial Separation the Court can make various ancillary
relief orders. On obtaining a Decree of Judicial Separation the parties are no
longer required to cohabit but however they are not entitled to re-marry.
The granting of a Decree of Divorce in a Court effectively relieves spouses
from the obligation to cohabit with one another and allows them to remarry. An
Irish divorce may be obtained in either the High Court or the Circuit Court
depending on the extent of the family property. There is no obligation on
spouses to have either sought a Judicial Separation or effected a Deed of
Separation before seeking a Decree of Divorce.
In order to successfully obtain a Decree of Divorce from an Irish Court, it is
necessary to satisfy the Court that:-
1. At the
date of the commencement of the proceedings, the spouses have lived apart for
four out of the five previous years.
2. There is no reasonable prospect of a reconciliation between the spouses.
3. Proper provision is or will be made for the spouse and dependent members of
addition, before an Applicant spouse will be granted the Decree of Divorce
sought, the Court must be satisfied that either spouse is domiciled in the
State at the date of issue of the proceedings or that either spouse was
ordinarily resident in the State for one year before the date of issue of the
relevant period of four out of five years must have expired before the issuing
of the Application for the Decree of Divorce.
matter of case law, it is possible to be granted a Divorce if the parties have
lived separate and apart, even under the same roof.
of Nullity is concerned with the legal validity of a marriage at its inception.
A marriage can be declared a nullity where some vital component, for example,
the consent to marry, is missing. When a marraige is declared null and void a
court is declaring that the couple were never legally married to one another
and they are then legally free to remarry. The main distinction between a
Decree of Nullity and that of Divorce, is that in a Divorce situation, a valid
marriage is dissolved, whereas, in a Nullity situation, there never was a valid
marriage in the first place. It is important also to note that there is a
difference between a Nullity granted by the Church and that granted by the
Courts. They are two different remedies and the granting of one, does not automatically
entitle a spouse to the granting of the other.
The effect of a Decree of Nullity is that spouses cease to be legally
married to one another and so loose their rights as spouses under various
associated legislation. For instance, a person who has successfully sought a
Decree of Nullity through the Courts will not be entitled to receive any
maintenance in respect of him/herself, as he/she was not a spouse at any time
of the other. Also, the various succession rights of spouses will be affected
by the Decree, as the parties are no longer considered spouses of each other.
One of the major concerns of parents who have decided to separate or
divorce is the impact that that decision will have on their children. Research
abounds which shows that children can suffer when their parents decide to live
apart. It is also widely accepted that the adverse impact on children can be
greatly lessened if parents adopt a positive, co-operative and constructive
approach to addressing their childrens' concerns.Parents who separate or
divorce are usually confronted with considerable emotional, financial and other
worries themselves but many parents recognise the need to place their children
at the centre of all their decisions and responses, despite how difficult that
can be at various stages along the separation and divorce process. There is a
wide range of agencies and support services to help parents
guide their children through what is a time of immense change and confusion, in
2. The Children
One of the primary tasks of any family law solicitor is to try and
ensure that whatever difficulties exist between spouses that the impact on
children is managed constructively. At Lynch and Partners we take that role
extremely seriously and do everything in our power to help parents to help
Before granting any Judicial Separation, Divorce Decree, Preliminary Order or
Ancillary Order, the Courts main priority will be to ensure that permanent
provision is made for the welfare of the children. Welfare in this case is
taken to include religious, intellectual and moral welfare.
Guardianship means the rights and duties of parents in respect of the
upbringing of their children. Guardianship rights entitle a parent to make
important decisions regarding that child's upbringing, for example, deciding on
the child's religion, education, medical treatment and general rearing.
natural mother of a child is automatically a guardian of the child. A father
who is married to the mother of his child also has automatic guardianship
rights in relation to that child. This applies even if the couple married after
the birth of the child.
a father who is not married to the mother of his child does not have automatic
guardianship rights in relation to that child. If the mother agrees for him to
be legally appointed guardian, they must sign a joint statutory declaration. If
the mother does not agree for him to have guardianship, he may apply for this
status to the District Court.
Custody means the right to the physical care and control in respect of the
upbringing of a child on a day to day basis. Married parents residing together
are the joint guardians and custodians of their children. After separation they
continue to be joint custodians. However, one parent may take the role of
primary carer which involves the child/children living with them and staying
with the other parent less frequently.
The parent who does not have the day to day care of the child is entitled to
access to the child / children.
Access is defined as the right of the parent, with whom the child does not
live, to spend time with the child. It can include the right to have the child
stay overnight either occasionally, on alternate weekends or during school
holidays and the right for parent and child to go on holidays together. In many
cases, custody and access arrangements for a child / children are agreed
informally between parents. Where agreement cannot be reached in this regard
either parent can make an application to the court to decide the terms and
conditions which will govern custody and access of a child / children. The
application can be made to the District Court or can be made in an application
for Judicial Separation or Divorce in the Circuit Court.
3. Division of Assets of Marriage -Proper Provision
Factors Considered by the Judge
When a couple decide to separate or divorce one of the primary difficulties
often relates to how they divide their assets and financial responsibilities
going forward. In considering this area we look at the following topics:
The Court is directed to have regard to certain matters in deciding whether or
not to make orders for ancillary reliefs in respect of maintenance, pensions,
property, financial compensation orders and succession rights. The Court must
have regard to the following matters;
- the income, earning
capacity, property and other financial resources which each of the
spouses concerned has or is likely to have in the foreseeable future
- the financial needs,
obligations and responsibilities which each of the spouses has or is
likely to have in the foreseeable future (whether in the case of the
remarriage of the spouse or otherwise),
- the standard of living
enjoyed by the family concerned before the proceedings were instituted or
before the spouses commenced to live apart from one another, as the case
- the age of each of the
spouses, the duration of their marriage and the length of time during
which the spouses lived with one another,
- any physical or mental
disability of either of the spouses,
- the contributions which
each of the spouses has made or is likely in the foreseeable future to
- the welfare of the family,
including any contribution made by each of them to the income, earning
capacity, property and financial resources of the other spouse and any
contribution made by either of them by looking after the home or caring
for the family,
- the effect on the earning
capacity of each of the spouses of the marital responsibilities assumed
by each during the period when they lived with one another and, in
particular, the degree to which the future earning capacity of a spouse
is impaired by reason of that spouse having relinquished or foregone the
opportunity of remunerative activity in order to look after the home or
care for the family,
- any income or benefits to
which either of the spouses is entitled by or under statute,
the conduct of each of the spouses, if that conduct is such that in the
opinion of the court it would in all the circumstances of the case be
unjust to disregard it,
- the accommodation needs of
either of the spouses,
- the value to each of the
spouses of any benefit (for example, a benefit under a pension scheme)
which by reason of the decree of divorce concerned, that spouse will
forfeit the opportunity or possibility of acquiring, the rights of any
person other than the spouses but including a person to whom either
spouse is remarried.
in relation to the Family Home forms a substantial part of almost every
application for Divorce. A Family Home is defined as "a dwelling in which
a married couple ordinarily reside".
There are a number of orders that can be made in respect of the family home,
the Court is empowered to make the following property adjustment orders:
- The Court may direct that
property be transferred from one spouse to another, or to any dependent
family member, or to a specified person for the benefit of such a member.
- The Court can direct the
settlement of any property for the benefit of either spouse, or for a
dependent family member.
- The Court can direct an
order which varies a previously agreed settlement of the property.
- The Court can direct an
extinguishment or reduction of any interest held by either spouse under
any such settlement.
Adjustment Orders can be made in favour of all kinds of property, both moveable
and immovable and both real and personal. It can be made on stocks, shares,
art, livestock, businesses, investments, savings, holiday homes, commercial
properties and cars or boats. The Court has wide discretionary powers in
relation to making such property adjustment orders as it deems necessary in
each individual case.
also has the power to make orders in respect of life assurance for spouses and
dependant children. The Court has the power to make a financial compensation
order requiring either or both of the spouses to do one of the following:
- Effect a life insurance
policy for the benefit of the other party or any other dependant family
- Assign such a policy in
whole or in part to the other spouse or dependant family member.
- Continue to discharge the
premiums due on a particular policy.
pension entitlements of an individual and his spouse arising from occupational
or personal pension arrangements may be adjusted on separation or divorce. The
Family Law (Divorce) Act, 1996 sets out the treatment of pensions in cases of
A pension is a valuable matrimonial asset and on divorce is seen in the same
way as any other asset. The Family Law Acts require pension benefits to be
taken into account in arriving at a financial settlement in the case of a
judicial separation or divorce. The Courts can decide whether or not it is
appropriate to split pension rights in order to regulate a couple's financial
affairs or, alternatively, to make an adjustment in respect of non-pension
marital property. Thus allowance can be made in one of two ways:
- by a Pension Adjustment
- by making Orders in
relation to some other assets (e.g. the family home or savings), which
the Court considers will provide a fair overall distribution of the total
A pension adjustment order can assist in proper provision for spouses on
retirement. A pension adjustment order may be obtained in respect of either a
retirement benefit and/or a contingent benefit. A contingent benefit is usually
referred to as a "death in service benefit" and is paid to a widow, widower
or dependent child of a pension scheme member who dies while in relevant
employment. A retirement benefit is payable to a member of a scheme who dies
after the attainment of normal pension able age. This money may also be payable
to a widow, widower or dependent child on the death of the retirement member.
The Succession Act 1995 provides that by virtue of his or her status as a
spouse, a widow or widower is granted an automatic share in the estate of his
or her deceased spouse. If a testator dies leaving a spouse only, then that
spouse is legally entitled to one half of the estate. If a testator dies
leaving a spouse and children, then the spouse has a legal right to one-third
of the estate. A spouse is essentially provided for out of the estate of the
deceased spouse regardless of the terms of his or her will.
The Family Law Divorce Act 1996 deals with the issue of Succession Act rights
in the context of Divorce. The Act provides that if one of the spouses in
respect of whom a decree of divorce has been granted dies, the former spouse
may make application to the ourt to have provision made for himself or herself
out of the estate of the deceased spouse. The Act continues to provide for the
granting of what is known as a "blocking order", i.e. an order
directing that the aforementioned provision is not available to the spouse post
4. Legal Costs
per hour at a rate agreed in advance with you. Time includes advising,
attending on you and others by telephone and in person, dealing with papers,
correspondence, telephone calls, travelling and waiting time. We may even be
able to agree a fixed fee with you.
also reflect the complexity and urgency of the case the value of the
transaction and priority the required by you.
charges will be measured having regard to:
- The skill, labour and
responsibility involved in the case and any specialised knowledge given or
applied by us.
- The complexity, difficulty,
rarity or urgency of the questions raised
- The importance of the matter
- The time reasonably expended
by us on the case
- The place where and
circumstances in which the case is pursued
Unless we agree a fixed fee (when we will normally ask for payment in advance),
we will invoice you for the work done at the end of each month and ask that you
pay by return. We may ask you to make a payment on account before proceeding.
Asking you to pay in this way helps us maintain our cash flow and keep our bank
charges to a minimum. This in turn helps us to keep our charges as low as possible.
This is very important to us and indeed all our clients; so much so, that it is
our practice to cease work on a case if the invoice is not paid on time.
responsible for the payment of the proper and reasonable charges for work done
on your behalf. Such charges may include Court fees, Counsel’s fees,
Accountancy fees, fees for medical examinations and reports and any other
experts fees (such as Child Psychologists) or charges reasonably paid for or
contracted for by us as your agent in pursuance of the case.
are in any way dissatisfied with the amount of your fee, you have options.
- The first is to talk to us.
- The second option is that if
it is not possible to agree a fee you can ask the County Registrar to look
at the work and the file. If they do not agree with the fee, they will