So you want a divorce? The first advice any family lawyer should give you is: think again. And then, once you’ve thought about it, think about it yet again.
Divorce is no picnic. It may be difficult for couples in Ireland, protected from the harsh consequences of divorce and remarriage in other countries, to realise the bitterness, the loneliness and the psychological trauma which can accompany divorce.
Having said that, hundreds – if not thousands – of Irish couples live in intolerable circumstances which can hardly be worse than the most extreme divorce scenario. But even then, divorce is not necessarily the answer.
If a marriage has broken down, there are four possible options: fix it or opt for nullity, separation or divorce.
This guide is from family law expert, Roddy Tyrrell, publisher of Lawyer.ie & Principal of Tyrrell Solicitors in Dublin 4.
To arrange a consultation by phone or in person, contact him using the enquiry form or call (01)6671476.
But if the relationship can’t be rescued, the next option which should be considered is nullity. Nullity means that a marriage never existed – even though the couple may have been together for umpteen years and have innumerable children and grandchildren. The most common ground for a decree of nullity is that the couple were, at the time of the marriage, unable to “enter into and sustain a normal marital relationship”. Such a claim is normally based on the psychological condition of one or both spouses.
In more extreme cases, the couple may have failed to meet the legal requirements for marriage (they may have been under 18 or have given insufficient notice), they may be too closely related by blood or they may not be a man and a woman (not too common, but it does happen!)
If a decree of nullity is granted, each partner is entitled to marry someone else, as if the former “marriage” never existed. The advantages of a decree of nullity over a decree of divorce are that there is no minimum waiting time and, in the case of a well-off spouse, he (or she) may avoid the financial burden which follows divorce.
But, assuming that the couple are not entitled to a decree of nullity, they should consider separation – either by consent or by court order.
Separation can simply mean one partner moving out, going to live somewhere else and never setting eyes on the other partner again. At the other extreme, it can involve a full-scale court battle, with children, the family home, wages and pensions all thrown into the melting pot. If the couple can’t agree matters, the Court has power to resolve all the issues involving children, property and money.
The advantage of separation is that a couple can reconcile at any time and get back together again. But a judicial separation order merely gives the couple the right to live apart; the major disadvantage is that neither spouse can marry someone else.
If a married couple have split up, have unsuccessfully attempted reconciliation and now one or both partners want to marry someone else, the only answer is D-I-V-O-R-C-E.
It should be stressed that divorce is purely a civil remedy. It has nothing whatever to do with Church marriage. Catholics who were validly married in church and subsequently obtain a divorce may not marry another partner in a Catholic church while their first partner is still alive. Anyone who may wish to do so, for religious or family reasons, should inquire from the local diocesan office about the possibility of obtaining a Church nullity. That can takes four years or more so, if it’s an option, it should be investigated at an early stage.
The 12 steps to an Irish divorce are:
1.Live in Ireland.
You can’t get an Irish divorce unless at least one spouse is domiciled in the Republic or has lived in the country for a year before bringing proceedings.
2.Marry each other.
You can’t divorce unless you were validly married to start with.
3.Wait for four years.
The Divorce Act requires that the couple must have lived apart for at least four of the five years before proceedings are issued. It’s not yet clear whether the couple have to be living in separate houses. During the referendum campaign, Government ministers seemed to suggest that a couple could be living apart if they were under the same roof but not sleeping together. That will have to be tested through the Courts.
4.Break up, and stay broken up.
The Court must be satisfied that there’s no reasonable prospect of reconciliation and that both the spouses (and any children) are properly provided for.
5.See a solicitor.
There’s nothing to stop you bringing the action yourself if you can understand, for example, Section 36(b) of the Divorce Act, which says: “Subsection (1) of section 115A of the Finance Act 1993 (which was inserted by the Finance Act 1994 and provides for the abatement or postponement of probate tax payable by a surviving spouse) shall apply to property or an interest in property the subject of such an order as it applies to the share of a spouse referred to in the said section 115A in the estate of a deceased referred to in that section or the interest of such a spouse in property referred to in that section, with any necessary modifications”! If that poses problems, take expert advice. If you can’t afford a solicitor, apply for legal aid. A straightforward, uncontested divorce should not cost more than 1200 Euro +vat.
6. Consider the options.
The Divorce Act requires the couple’s solicitor to inform them about the options of reconciliation, mediation and separation agreements. Reconciliation has presumably already been tried and failed. Mediation, possibly through the State-funded Family Mediation Service, means sorting out all the contentious issues before (or instead of) going to Court. A separation agreement is a legal document, agreed by the couple and signed by each of them. It can be made legally enforceable.
7. Apply for a divorce.
Most applications will be made to the Circuit Court, but the more difficult cases (or the ones involving a great deal of money) will be dealt with by the High Court.
8. Wait…and wait…and wait.
There may be as many as 60,000 people in Ireland waiting to lodge applications for a divorce. If they all apply at once, the system will collapse. As it is, efforts are being made to provide extra judges, more courtrooms, additional lawyers – with all the back-up facilities that will require. But you may still have to wait many months before your case comes up for hearing. In the meantime…
9. Seek a stop-gap solution.
While you’re waiting for the divorce application to be heard, you’ll need to get on with your life. If you’ve already been living apart for four years, you may have established a modus vivendi with your spouse which can last until the Court hearing. But if not, either spouse is entitled to apply for interim remedies including orders for periodical payments (maintenance), custody of children, safety or barring orders and an order entitling one spouse (normally the wife with any children) to sole occupancy of the family home.
10 Sort out the issues.
Try and resolve the main issues before you arrive in Court. If you don’t, the lawyers will – and that will take time and cost money. Try and agree what to do with the family home. One common solution is for the wife to remain in the home until the youngest child is 18 or has ceased education, and then for the house to be sold and the proceeds split on an agreed basis. In the case of children, if they’re young, they’re normally left with the mother, while the father has access – perhaps they may stay with him at weekends or for holidays. But the Court may rule that either parent is unsuitable to have custody. Try and sort out the financial position: maintenance, pensions, inheritance. Normally the working spouse will make periodical payments for the spouse who stays at home with the children. Payments for children usually cease when they’re 18 or stop education. If there are no children and the couple are both working, they may wish to remain financially independent from one another. But, whatever the couple may decide between themselves, they cannot legally contract out of their right to seek more money from the other partner, even after a divorce. And there’s no point in trying to hide money or property before the Court hearing. Any deal giving away or selling property within three years of a divorce, with the intention of depriving the other partner, may be invalidated by the Court.
11.Have your day in Court.
The Court hearing is in private and relatively informal; the judge and barristers, for example, don’t wear wigs and gowns. If everything has been worked out in advance, the hearing should be reasonably brief. Irish divorce is not fault-based so, if a couple have fulfilled the legal requirements, either partner is entitled to a divorce, however badly they may have behaved. But, when the Court makes financial or property orders, it is entitled to take into account the conduct of either spouse, if it would be unjust to disregard it. Don’t try and drag the children into it; the judge won’t be impressed.
12. Finally, pick yourself up, dust yourself off and try to start all over again.