WHAT IS DIVORCE?
Marriage is a legally binding contract entered into by a man and a woman. It brings with it certain rights such as an automatic right of inheritance on the death of one’s spouse (legal right share) and taxation benefits. A decree of divorce dissolves that contract and enables
either party to re-marry. Divorce terminates certain rights, such as succession rights and pension rights, and so it is always important to obtain legal advice at the outset.
WHEN CAN A DIVORCE BE GRANTED?
Either the Circuit Court or High Court can grant a decree of divorce if the Judge is satisfied that;
- The husband and wife have lived apart for four of the previous five years,
- There is no prospect of a reconciliation between the husband and wife,
- Proper provision has been or will be made for the spouses and dependent children.
Before commencing divorce proceedings with your solicitor he/she must consider the alternatives with you such as:
- The possibility of resolving the difficulties in your marriage,
- Making your own agreement with the help of a qualified family mediator which can be converted into a Separation Agreement with your solicitor,
- Entering into a Separation Agreement which is an agreement in writing between you and your spouse which does not require attendance at Court,
- Judicial Separation by way of Court Order;
- Negotiating the terms of your divorce through traditional negotiation methods or collaborative law, which can be ruled in Court by agreement.
WHAT IS PROPER PROVISION?
Proper provision is not defined and varies depending on the circumstances of each individual case. The Act sets out all the “factors” to be taken into account By the court to ensure that the spouses and dependant children are properly provided for following the divorce.
The Court can make Orders, known as ancillary reliefs, in relation to;
- Custody of, and access to the dependant children,
- Maintenance for the dependant spouse and/or dependant children,
- The right of residence/ownership/transfer/sale of the family home,
- The ownership/transfer/sale of any other property owned by the couple.
- Life policies and pensions
- Succession rights.
The “factors” that the Court will take into account include;
- The income, earning capacity and financial resources of the couple,
- The standard of living enjoyed by the family,
- The ages of the spouses and length of the marriage,
- The contributions made, through work outside of or within the home, to the welfare of the family,
- The conduct of either spouse,
- Accommodation needs of the family.
Contact your solicitor for a preliminary consultation bringing with you the information set out on the back page. Your solicitor will take full instructions from you and when you are ready will issue (begin) the proceedings.
Divorce proceedings are commenced by issuing a Family Law Civil Bill and serving it on your spouse. This document must be accompanied by an Affidavit of Means and Affidavit of Welfare.
The Affidavit of Means lists all of your assets, your income details, your debts & liabilities, pension details and your weekly/monthly expenditure.
The Affidavit must be supported with documentation such as bank statements, P60’s, pay slips etc.
The Affidavit of Welfare set out all of the information in relation to the dependant children such as the living, care and access arrangements, any special educational or health needs.
If the divorce is contested then your spouse/the respondent will file a Defence and Counterclaim. If an agreement is negotiated then an application can be made to Court for a date to have the consent ruled.
HOW LONG DOES IT TAKE?
If your spouse does not contest the application, it may take up to six months to secure a date to rule the consent divorce depending on the court lists and the place where the proceedings are issues.
If your spouse does contest the case, it could take substantially longer. Once the Defence and Counterclaim is filed, a case progression hearing will be held by the County Registrar to determine what the outstanding issues are and ascertain whether your case is ready to be allocated a trial date Some matters which might delay a case including obtaining financial information from the other side and applications to Court may be required to compel your spouse to produce the relevant information. Negotiations can take place at any time before the trial date in an attempt to resolve all or even some of the issues.
If the case proceeds to trial then experts such as auctioneers, accountants, child experts may be called. The longer and more contested the case, the greater the legal and other professional costs will be.
The issue of costs should be discussed at the first meeting with your solicitor. It will be difficult to give an exact figure for the costs that will be involved in y our case as it very much depends on how your case proceeds. Your solicitor should be able to give you some parameters to act as a guide and should also be in a position to explain their method of charge for example their hourly charge rate.
Costs will be related to the length of your case whether a barrister is engaged, the number of applications to Court that are required and how contested matters between you and your spouse are.
Following the divorce there may be additional work such as the sale or transfer of property, obtaining general taxation advice or advice form a pensions’ expert and these fees/costs will be in addition.
If you are unable to pay for your own solicitor you may qualify for Legal Aid provided by the State and you should contact your local Legal Aid Board Law Centre to complete a means test.
After your case is dealt with in Court a divorce decree will be sent to you setting out the terms of your divorce. This decree declares legally that your marriage is dissolved. On receiving your divorce, you automatically have the right to remarry.
This Article was produced by The Law Society of Ireland