When a couple in Ireland cannot agree the terms by which they will live separately, an application to the Courts for a Decree of Judicial Separation and be made by either party.
The conditions which must be satisfied for Judicial Separation are as follows:-
• There must be grounds for the application
• Both parties must have been advised about mediation and counselling.
• Appropriate provision must be made for the dependents.
The Judicial Separation means that the couple no longer have to live together as a married couple. Other aspects will also be dealt with, such as division of assets, maintenance payments, custody/ access to children, succession rights etc. An application for a Judicial Separation is made either in the Circuit Court or the High Court. As in all family law matters, cases are heard in private and the public is not admitted to the Courtroom.
Before the application is granted for judicial separation, one of the following preconditions must be met:-
1. Adultery has been committed by one of the parties.
2. The behaviour of one party must be such as to make it unreasonable for the other party to be expected to live with them.
3. Desertion has taken place whereby one of the parties has deserted the other for at least one year.
4. The parties have lived apart for one year up to the time of the application and the parties agree to the Judicial Separation.
5. The parties have lived apart for at least three years (irrespective of whether the parties agree to the Judicial Separation).
6. The evidence before the court is that the normal marital relationship has not prevailed for at least one year.
The last is by far the most common ground on which the decree is granted, as neither party has to be shown as being at fault.
If you feel that there is no real prospect of being able to agree terms for the break-up of your marriage with your former spouse, you can instruct us with the absolute assurance that your interests will be protected as robustly and vigorously as the situation requires. We treat all matters with sensitivity whilst at all times ensuring that our Clients’ interests come first.
Please feel free to contact us if you have any queries concerning any of these matters. We will be delighted to hear from you. Please contact us: – by phone on 065-6828990 or email us at info@callinanmurphy.ie or lornahrehorow@berwick.ie or use the ‘Contact Us’ section of our website.
Costs will vary in accordance with the complexity of the matter. 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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Frequently asked questions for Divorce and Separation
What is the difference between being Divorced and being Legally Separated?
If you obtain a Judicial Separation, you continue to be married and cannot remarry. On the other hand, divorce is final; marriage is at an end, this cannot be reversed and you are free to remarry. However, a Separation does settle a lot of matters such as financial arrangements, ownership of assets, access/custody of children and other such factors so it is often the appropriate step where one does not want to wait the requisite two years or the finality of divorce.
Is it necessary to obtain a Judicial Separation before you apply for a divorce?
The answer is no. Judicial Separation is not a pre-requisite for applying for divorce.
Explain Mediation
This is a process which is often very effective and involves an independent third party liaising between the parties with a view to trying to reach agreement on issues. The mediator will try to resolve matters such as asset division, pension, custody and access to children. Mediation can also avoid the bitterness that can develop between parties when litigation becomes sharp. 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.
How about 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.
Is it possible to get 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.
Is there a special divorce court?
The applications take place at the local Family Circuit Court.
How long does the process of obtaining a divorce or legal separation take?
There is a backlog in the court system and, accordingly, it may take many months before your case will come up for hearing. Furthermore, there can be other reasons for delays; for example, if there is a lot of disagreement between the parties. 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.
What is the position when I am waiting for my divorce?
Normal life takes place. 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.
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.
Who gets the family home?
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. 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. 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. As pensions are very complex, it is strongly advised to consult with a solicitor and a pension specialist before negotiating any family law settlement. In this regard, Callinan Murphy are experienced family law solicitors who can offer you legal advice in this area.
What is involved in the divorce process?
Family law courts are held in private, so that only the parties involved and their legal advisers are in court. If there is substantial agreement between the parties 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.
Is there a need for a barrister?
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. Callinan Murphy will give you a good idea about this from the outset.
What should you do if you want a divorce?
It is advisable to consult with a family law solicitor to obtain advice. A divorce should always be the last resort.
Please feel free to contact us if you have any queries concerning any of these matters. We will be delighted to hear from you. Please contact us: – by phone on 065-6828990 or email us at info@callinanmurphy.ie or lornahrehorow@berwick.ie or use the ‘Contact Us’ section of our website.
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