Divorce Legal Advice Family law judicial separation Ireland Berwick Solicitors GalwayIn Ireland, divorce and separation are perhaps the most emotionally charged areas of law that a client will ever find themselves dealing with. It is important that you choose family law solicitors who are both experienced and competent to deal with your case.

You should not rush into a legal separation or divorce; rather it should be a last resort. Consider all options including marriage counselling and mediation. However, for many clients, they feel they have exhausted all avenues and there is no prospect of reconciliation. We are happy to advise at all stages of marital breakdown.

Divorce

Getting a divorce in Ireland through the courts, allows both parties to a marriage to remarry or enter into a civil partnership. Once the court is satisfied that the required conditions are met, the court will grant the decree of divorce dissolving the marriage. When it grants the decree of divorce, the court may also make orders in relation to custody of children and access to them, the payment of maintenance and lump sums, the transfer of property, the extinguishment of succession rights, pension rights, etc.

To obtain a divorce, both parties have been living apart from each other for a period of 4 years out of the preceding 5 years. The Courts have interpreted this as meaning that the couple can live separately and apart under the same roof but the marriage must have been over for at least 4 years.

In any application for a decree of divorce, the court can review any previous arrangements made by the parties such as a separation agreement or judicial separation particularly if the circumstances of either party has changed. A divorce following a legal separation should be much more straightforward than a divorce where there has been no legal separation. A legal separation allows a couple to get on with their lives and can deal with property, children, maintenance and pensions.

Before a court can grant a divorce in Ireland, the following conditions must be met:

  1. The parties must have been living apart from one another for a period amounting to four out of the previous five years before the application is made.
  2. There must be no reasonable prospect of reconciliation.
  3. Proper arrangements must have been made for the parties and any dependent members of the family.

When a decree of divorce is granted, it cannot be reversed. Either party can apply to court to have any other orders made under the decree – such as maintenance – reviewed by the court.

Grounds for Divorce
There are a number of requirements which must be met before a court will grant a decree of divorce which essentially dissolves the marriage. Firstly, contrary to what some people think, both parties must have been living apart from one another for a period of 4 out of the previous 5 years. This quashes the notion of getting a ‘quickie divorce’ and often clients are shocked to discover this when seeking a decree. Secondly, there must be no reasonable prospect of reconciliation between the couple and one spouse must have been resident in Ireland for the previous 12 months before bringing proceedings. The court must be satisfied that any children/dependents are properly provided for and that also includes the couple seeking the divorce.

When it grants the decree of divorce, the court may also make orders in relation to custody of children and access, the payment of maintenance and lump sums, the transfer of property, the extinguishment of succession rights and pension rights. In any application for a decree of divorce, the court can review any previous arrangements made by the parties such as a separation agreement or judicial separation particularly if the circumstances of either party has changed.

Reasons for Divorce
Many clients seeking a divorce feel that the marriage has broken down beyond repair and they wish to live separate lives. Some clients exasperate mediation and cannot resolve issues and it is at this point that they attend our offices seeking a divorce. Many clients want an easy divorce and while we pride ourselves on helping clients through the divorce process, divorce is not to be taken lightly and any good family law solicitor, when seeing a new client who is seeking a divorce, will advise the client to think about it and think about it again. Many clients do not realise that after a divorce, that rarely are either party better off financially. However, for some clients, divorce is a better option than being in an unhappy marriage.

Divorce Decree
Once a decree of divorce is granted, it cannot be reversed. But it should be pointed out that following the divorce, either party can apply to court to have any other orders made under the decree – such as maintenance and sometimes even pension entitlements – reviewed by the court.

If you are seeking a divorce or judicial separation, it is important to seek legal advice.

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.

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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