Following 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:

Separation by Fact

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.

Deed of Separation

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.

It is 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.

Judicial Separation

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.

In 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.

Divorce

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 the family.

In 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 proceedings.

The relevant period of four out of five years must have expired before the issuing of the Application for the Decree of Divorce.

As a 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.

Decree Of Nullity

The law 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 their lives.

 

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 their children.

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
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.

The 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.

However, 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
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.

Access
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.

 

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:

Factors Considered by the Judge

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 may be,
• 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 make 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.

The Family Home

A dispute 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.

Other Assets

Property 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.

Financial Compensation Orders

The Court 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 member.
• 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.

Pensions
The 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 divorce proceedings.

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 Order; or
• 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 assets involved.

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.

Succession Rights

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 divorce.

 

4. Legal Costs

We charge 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.

Our Costs also reflect the complexity and urgency of the case the value of the transaction and priority the required by you.

Our 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.

You are 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.

If you 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 amend it.