The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, gives wide ranging rights and obligations to same sex and cohabiting couples. Cohabitant is the legal term used for couples who are not married, but live together.

The legislation allows unmarried cohabitants to apply to court for maintenance, pension adjustment orders, property adjustment orders or a share in the estate (assets) of a cohabitant who has died.

The law in this area is highly complex and if you are affected by this legislation, it is important that you seek professional advice from a family law solicitor as soon as possible in order to establish what your next steps might be.

In order to qualify as a cohabitant, the following criteria apply:

1. Cohabitants can be an opposite or same sex couple who are:

• Living together in an intimate and committed relationship. The couple must be living together for five years.  This is reduced to two years if they have children together;

• Not married to each other;

• Not registered in a civil partnership; and

• Not in the prohibited degrees of relationship.

 
 
2. If a cohabitant is still married, he or she must be living apart from his/her spouse for at least four out of the previous five years to come within the legislation.

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Testimonials – Family Law

I just want to say thanks to Berwick Solicitors and staff for their hard word in relation to obtaining my Divorce for me.

They made a very difficult process easier by guiding me through the process, providing information clearly and promptly and supporting me in a professional and respectful way.

I wish David and the staff continued success in the practice. I won’t hesitate in returning in the future should I need any legal advice and would be happy to recommend the service based on my own personal experience.

Thank you for all your help and support during my divorce. You have made a difficult situation easy to deal with and have always been available to explain anything.

Thank you for all your work throughout this process; I’m glad it’s finally all over.

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To decide whether a person was part of a cohabiting couple, the Court will also consider:

• The contributions of each person in looking after the home.

• The earning capacity of each partner, and financial dependence of either partner on the other.

• The degree to which they presented themselves to others as a couple.

• Whether there are children.

 
Orders that the Court can make:
If a Court decides that a person was part of a cohabiting couple, it can make a number of orders with a significant impact on both sides.

 
These include:

• Property adjustment orders.

• Maintenance orders.

• Pension adjustment orders.

• Orders in relation to an estate. When a cohabitant dies, the surviving cohabitant can apply for provision out of the deceased’s estate within six months after probate or administration is granted.

 
Time limits

If a person is seeking an order under the legislation, he or she must apply to the Court within two years of the relationship ending.

Because of this short time-frame, a person who may qualify as a cohabitant should seek legal advice as soon as possible after a relationship ends.

Please contact our family law solicitors David by email at davidhiggins@berwick.ie or Lorna at lornahrehorow@berwick.ie or by telephone on 091 576545 for confidential and impartial advice or any questions and queries that you may have.

 
Cohabitation Agreements

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, provides that cohabitants may enter into a cohabitant’s agreement to regulate financial matters during the relationship and crucially when the relationship ends, whether through death or otherwise.

This legally binding document can provide that neither cohabitant may apply to the Court for a property adjustment order, a compensatory maintenance order or a pension adjustment order or for provision out of the estate of the deceased subject to the Court’s power to vary or set aside a cohabitant’s agreement in exceptional circumstances where enforcing the said agreement would cause serious injustice.

In order for such an agreement to be valid, both cohabitants must obtain legal advice, and ideally independent legal advice, prior to entering into the cohabitation agreement.  The cohabitation agreement must be in writing and signed by both cohabitants. It is now vital for cohabiting couples to give thought to a cohabitation agreement, keeping in mind the effects of the Civil Partnership Act 2010.

Please contact our family law solicitors David by email at davidhiggins@berwick.ie or Lorna at lornahrehorow@berwick.ie or by telephone on 091 576545 for confidential and impartial advice or any questions and queries that you may have in relation to a cohabitation agreement.

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Costs for legal separation and divorce in Ireland

If your case is very straightforward, no pensions are involved and everything is agreed between you and your spouse before seeking our services, then it is likely that your costs for a divorce or legal separation will be very reasonable. The more complicated and time consuming your case is, the more it will cost. Every case is different. At our first meeting, we give our clients an estimate of the likely legal costs based on the various scenarios which might occur. We believe that legal costs should be transparent and that clients should be kept updated on legal fees at all stages of proceedings. Unlike some firms, we do not believe in litigating cases simply to drive up legal fees. Where cases can be settled and it is in your best interest to settle, we will advise you to do so. It is, of course, always your decision as to whether to settle or not. We believe in bringing value to clients and achieving an excellent result so that clients can get on with their lives.

If early agreement is not possible then your costs will increase. Going to court will increase costs further. While some cases are straightforward, many cannot be resolved with a settlement meeting or entering into communication with the other side.

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Divorce & Separation – Frequently Asked Questions

What is the difference between being divorced and being legally separated?

If you are divorced you are free to marry again. If you are separated you are still married and cannot remarry. However, a legal separation is important as it deals with all the financial issues and means that you can get on with your life relatively soon after your marriage has ended. Otherwise, you must wait 4 years after the marriage ends before you can seek a divorce.

Do I need to go through a judicial separation before applying for a divorce?

No, once you are four years separated you may start divorce proceedings.

What about mediation?

Mediation is where an independent third party helps both parties come to agreement about difficult issues such as custody and access to children, division of assets, maintenance payments and pensions. The aim of mediation is to help the couple resolve matters in a constructive way so that the interests of both parties and in particular those of their children are met. If a couple can reach agreement in mediation, those terms can then form part of a consent agreement. This can then save couples thousands of euro in legal fees where they can reach agreement.

Can I do a DIY divorce?

Under the law there is no obligation on either party to have a solicitor when seeking a divorce in Ireland. However, in cases where divorce is contested or there are issues over assets, or arrangements concerning the children then it is advisable to seek legal advice before bringing an application. Even if you have decided you do not want to retain a solicitor, it is best to seek legal advice. We often come across clients who have drafted their own legal papers and consent terms many years later and there have been difficulties in same.

Therefore, we recommend that at the very least that you have each party get a solicitor to review the terms of separation or divorce before you agree to same. Pensions are highly complex and it is important to seek advice on these before pension adjustment orders are made. Remember that in a DIY divorce you are responsible yourself and if it goes wrong the consequences rest with you alone. It is always advisable to seek the advice of a family law solicitor and/or family law barrister first.

Can I do a divorce online?

In Ireland, the current system does not allow applicants to file online for a divorce. You must submit the paperwork through the Circuit Court office.

Where is the divorce court?

Divorce hearings take place at the local court.

How long does the divorce process or judicial separation process take?

There are thousands of people in Ireland waiting to lodge applications for a divorce or judicial separation. As it is, efforts are being made to provide extra judges, more courtrooms, additional lawyers. As a result, you may still have to wait many months before your case comes up for hearing. In addition, should your spouse try and drag their feet during the process or delay things, that can impact on the time it takes to get a divorce or separation.

However, where there is a good chance of settling a case or where the terms have been agreed between the parties, the process can move quickly. We believe in moving things along as swiftly as possible to avoid hefty fees for clients. A fully contested divorce usually takes on average approximately 9 months. Where the parties are not contesting the divorce but merely working out financial arrangements and child arrangements, then 6 months is more common.

Can I get divorced in Ireland if I married abroad?

Yes, anyone who resides in the Republic of Ireland can file for a divorce in Ireland.

What do I do in the meantime while I am waiting for my divorce?

While waiting for a divorce or judicial application to be heard, clients usually want to get on with their lives. For those who are long estranged, very often things can be amicable or the process can move along in the background. For those who are living together or where there may be maintenance, access or domestic violence issues, 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. We can advise on all aspects of this.

I want to ensure I get the family home – how can I get this?

Often when discussions about divorce arise, there is an assumption that the family home is the biggest asset and parties to a divorce may place a major focus on the family home. However, in reality, and certainly given property market values of the past few years, a pension may be the most valuable asset.

Typically the parties and the courts will deal with the pension itself, the pension lump sum, spousal death in service benefits and spousal death in retirement benefits. It should be noted that if one spouse has a substantial pension and the other spouse has none, perhaps because he or she worked in the home, the court can order that part of the spouse’s pension be paid to the other spouse or to a dependent child. Alternatively, part of the pension fund could be split and put into another pension fund in the name of the second spouse. This is known as a pension adjustment order.

Some clients, particularly those working for government organisations or large companies where there are often good pension plans in existences, may find that they have sizeable pensions worth significantly more than the family home. In such cases, those clients may look to protect their pension in the division of assets. Indeed, there are cases where, as part of a divorce settlement, a spouse has kept the pension and given the other spouse the family home.

The courts attempt to separate the parties in as fair a manner as possible and try to insure that proper financial provision has been made for both the children and the parents. Before making a pension adjustment order, a court will consider all of the finances available to the parties and if it refuses to make a pension adjustment order, it may decide to reflect the value of the pension fund in the division of other marital assets.

Once granted, a pension adjustment order is then served on the trustees of the pension scheme who will then amend the pension in favour of the other spouse.

The danger in not dealing properly with pensions during a divorce is that the problem may not become apparent until such time as someone retires. There have been cases where parties have divorced and remarried, yet when one party retires, it transpires that their former spouse and not their new spouse is the person entitled to the pension or the death in retirement benefit.

As pensions are very complex, it is strongly advised to consult with a solicitor and a pension specialist before negotiating any family law settlement.

What does the divorce process involve?

The Court hearing is in private and only the parties to the judicial separation or divorce are allowed into the courtroom with their legal team. If there is a consent agreement / everything has been worked out in advance, the hearing is usually brief. If the cases goes to full hearing i.e you cannot agree the terms of the separation or divorce, you will be both asked to give evidence and you may be cross examined. You must disclose all evidence and swear on oath. Ireland operates a no-fault based jurisdiction so, if a couple have fulfilled the legal requirements, either partner is entitled to a divorce, however badly they may have behaved.

Will I need a barrister for my divorce or separation?

It depends on the type of case and the circumstances. If there are complicated issues regarding property, access, pensions or maintenance in a divorce or judicial separation, it is usual that a barrister will be retained in a case. Your solicitor will advise you on the facts of your case. In cases where there are complex issues even the most experienced of family law solicitors will bring an experienced barrister on board. You should seek a divorce solicitor who regularly works in the area of family law so that you obtain the best advice possible. This will give you an indication as to how technical the area can get.

I want a divorce – what should I do?

It is advisable to consult with a family law solicitor to obtain advice. A divorce should always be the last resort.

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If you are looking for advice on a family law matter, please contact:

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<div align="center">David Higgins</div>
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David Higgins

Partner

T: (091) 567 545 (Galway)
T: (01) 488 3322 (Dublin)
E: davidhiggins@berwick.ie

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