Following the breakdown of a marriage, where parties decide to live separate lives, they can choose to enter into a legally binding separation agreement. This allows the parties to negotiate and agree the terms by which they will live separately.

If you are unable to agree matters, either party can apply to the Circuit Court or the High Court for a Decree of Judicial Separation. Any such application must be based upon one of the following grounds:

– One party has deserted the other for at least one year at the time of the application for the decree.

– One party has committed adultery.

– One part has behaved in such a way that it would be unreasonable to expect the other party to live with them.

– Where the Court considers that no normal marital relationship has existed between the parties for at least one year prior to the date of the application for the decree.

– The parties have lived apart from one another for at least one year at the time of the application for the decree, whether both parties agree to the decree being granted or not.

The Family Law Act 2019 (as amended) provides the definition of the term ‘living apart’, whereby parties living in the same home as one another are considered to be living apart if the parties are not living together as a couple in an intimate and committed relationship.

Prior to granting a Decree of Judicial Separation, the Court must be satisfied that one of the above grounds exist and that proper provision has been made for any dependant members of the family. The Court may also grant Orders in respect of maintenance, custody and access, the division of assets and extinguishment of succession rights.

Under new Family Law legislation which commenced on the 1st of December 2019, married couples can now apply to the courts for a Decree of Divorce after a period of 2 years subject to certain conditions being met.

– The court must be satisfied that the spouses have lived apart for at least 2 of the previous 3 years.

– There must be no prospect of reconciliation.

– The court must also be satisfied that proper provision has been made for any dependent members of the family.

A divorce allows both parties to terminate their marital relationship and remarry having been granted a decree of divorce.

We can advise you in relation to these conditions prior to any application being made to the Court. We will also try to ensure that all other aspects of your financial and/or family life which may need to be resolved, are dealt with during the legal process.

We recently represented a client throughout the Divorce process from initiating proceedings, dealing with all procedural requirements and attending Case Progression in order for a Hearing Date to be assigned. In this case, on the morning of the hearing, we were able to successfully reach an agreement between the parties in dealing with the division of assets, maintenance and access in respect of the parties’ children and the parties’ pensions. The terms agreed between the parties were signed and the matter was then ruled that afternoon by the Judge whereby an order was granted in accordance with the terms agreed. This resulted in a more conciliatory outcome for the clients and both parties were glad to have avoided the full formalities of the Court process in the circumstances.

Although it may not always be feasible to reach an agreement in advance of a court hearing, we will assist you to reach an agreement where possible. This will allow your Divorce to be ruled on an agreed basis. This is often the best approach for both parties and any dependants, as it helps to reduce the conflict, stress and costs for everyone involved.

Guardianship describes the legal responsibility of parents to make decisions and perform duties in relation to their child’s upbringing, ensuring proper care is being provided for the child along with rights to make decisions about the child’s religious and secular education, health requirements and general welfare. Married parents are automatically joint guardians of their children.

A father who is not married to the mother of his child does not have automatic guardianship rights in relation to that child. Only the mother has automatic rights to guardianship. Under the Children and Family Relationships Act 2015, unmarried fathers are entitled to automatic guardianship in the following circumstances:

– if the father has lived with the child’s mother for 12 consecutive months after the 18th of January 2016, including at least 3 months with the mother and child following the child’s birth. If there is a disagreement as to whether they have been cohabiting for the time mentioned, an application can be made to Court for a necessary declaration in the District Court or Circuit Court.

In the event of a mother not consenting to the father being appointed a guardian, he can apply to the court to be appointed as a joint guardian irrespective of whether his name is on the child’s birth certificate or not. The fact that the mother does not consent does not mean an application for guardianship will be refused. The overriding principle is in the best interests of the child.

Where civil partners or a cohabiting couple have jointly adopted a child under an adoption order, the civil partners or cohabiting couple shall be guardians of the child jointly.

The Children and Family Relationships Act 2015 makes provision for non-parents who have been the primary carer for a child for a period of time to apply to become a Guardian of the child. The Act allows civil partners, step-parents, those cohabiting with the biological parent for 3 years and those acting in loco parentis for a specified period (a minimum of 12 months where no other guardian is available) to apply for guardianship and custody.

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 confers certain benefits on unmarried couples. Parties will be recognised as qualified cohabitants if they are living together for five or more years or for two years where the parties have a child together.

Economically dependent cohabitants now have enforceable rights through application to the Courts. In determining whether or not two adults are cohabitants, the court will consider all circumstances of the relationship. They must be living together in an intimate and committed relationship. Cohabitants cannot be married, in a civil partnership or related.

Once a Court is satisfied that a party was financially dependent and that the financial dependence arises from the relationship or the ending of the relationship, it may make certain orders to protect the financially dependent partner/cohabitant. An application for such orders must be made within 2 years, from the date the relationship ends. Orders the Court may make are similar to those available on separation and divorce, such as Property Adjustment Orders, Maintenance Orders and Pension Adjustment Orders. An application may also be made for provision from the estate of a deceased cohabitant. This must be made within 6 months from the date of the Grant of Representation of the Estate. Any such orders granted will lapse in the event of marriage.

Cohabitants also have the option to contract out of the rights provided for them, in the 2010 Act.

Foreign divorces are recognised in Ireland if both spouses were domiciled in the particular jurisdiction or state of the Court granting the divorce, at the date of the beginning of the proceedings.
The recognition of foreign Divorces is governed by the Domicile and Recognition of Foreign Divorces Act, 1986, along with Brussels II bis, which provides for automatic recognition of divorces and separation granted in the courts in other EU Member States.
Domicile is a complicated legal concept which can often cause difficulty. A broad interpretation is that a person is domiciled in the country where he/she is born or, having emigrated, where he/she is resident and intends to reside permanently or at least indefinitely. In other jurisdictions, the entitlement to have a divorce recognised often depends on fulfilling the requirement that one of the spouses was resident in the state where the divorce is granted, at the time the divorce proceedings are issued, as opposed to being domiciled in that state.
In the event of a dispute as to the recognition of a Foreign Divorce here in Ireland, an application can be made to the Court under The Family Law Act 1995 for a declaration that a divorce is entitled to recognition within the State.
We were recently instructed by a client who had obtained a Divorce in a foreign jurisdiction. The client was advised about the possibility of seeking a declaration from the Circuit Court, declaring that his foreign divorce would be recognised in Ireland. Thankfully in this case, we were able to negotiate on behalf of the client and an acknowledgement was elicited from the other side that the foreign divorce would be recognised and was valid. Consequently, it was not necessary in this case to issue the declaratory proceedings. This saved the client time, money and stress.

In Ireland, Mediation has been put on a statutory footing with the Mediation Act 2017. Mediation is a voluntary process which involves the appointment of a Mediator who is entirely independent of the parties and whose role is to assist the parties reach a mutually acceptable agreement thus playing an important role in Family Law Proceedings.

It allows for an open conversation to take place between the parties on any issues that may be in dispute such as the division of assets, access and maintenance. Ultimately this process can facilitate the parties to arrive at mutually agreeable terms which can be very useful in ensuring that parties continue to have an amicable relationship in respect of Separation or Divorce proceedings.

McGrath Mullan LLP recently represented a client in Divorce Proceedings, initiated by his former spouse. Following their attendance at Mediation, both parties were able to successfully reach an agreement themselves as to the terms of their Divorce. Upon our review and advice, the terms were finalised and application was made to the Court for Ruling the Divorce. A date was then assigned for the matter to be ruled by Court, within a relatively short period of time, overall reducing conflict, stress and costs for the parties.

The court has the power to divide the parties pension entitlements and can order one party to transfer all or part of a pension to the other party. The order can cover not only a pension paid after retirement but also a benefit payable in the event of death prior to retirement.

Pension adjustment orders can only be made by the courts at the time of separation and/or divorce. A pension adjustment order is a binding order served by the court to trustees or the provider of a pension of which spouses/civil partners/qualified cohabitants require a portion of the pension to be paid to another party.

It is important to note that although separation agreements can specify agreed terms in respect of pensions, these are not binding on the Trustees of the pension. Consequently, in order for such terms to have a binding effect on the Trustees, a pension adjustment order must be obtained from the Court.

We ensure that the appropriate pensions advice has been taken at the time of separation and/or divorce proceedings and that our client’s interests are safeguarded.