SO YOU WANT AN
IRISH DIVORCE?
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.
Reconciliation is
obviously the first option. Why would anyone want to break up a partnership
which has a chance of success if it can be saved? Agencies like Relate
can help couples to resolve a wide range of problems, ranging from sexual
difficulties to alcoholism or unfaithfulness.
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:
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.
Marry each other.
You
can't divorce unless you were validly married to start with.
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.
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.
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 married person with three children earning £15,000
($22,500), for example, may pay as little as £476 ($700) for a legal
aid solicitor. If you want to avoid the waiting lists in the legal aid
centres, go private. Members of the public may not deal directly with barristers,
but if you know of a good family law barrister, you may instruct your solicitor
to brief him (or her), or you can rely on your solicitor's advice. Expect
to pay some of the fees up front; they'll vary according to the complexity
of the case. A straightforward, uncontested divorce should not cost more
than £2,000 (that's about US$3,000).
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.
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.
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...
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.
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.
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.
Finally, pick
yourself up, dust yourself off and try to start all over again.
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