A relationship breakdown can often be a very traumatic and upsetting time for all involved. Whether it is a couple living together, parents of children, or a married couple, every relationship break up brings its own unique challenges and hurdles.
What happens when you visit a Solicitor to discuss a Separation or Divorce?
Relationship breakdown is stressful for all parties and can be difficult to discuss.
The first thing which we always explore is the possibility of reconciliation and counselling. We give clients the names and addresses of people qualified to help, which includes counselors & mediators. When we say counseling, we mean both marriage counselling and personal counselling. Mediation is a non-confrontational way to discuss and resolve issues.
Relationship Breakdown – What are the options available?
- Deed of Separation
- Judicial Separation
- Divorce
A nullity is also an option where the Court would make a finding that a marriage never existed. This is an extreme option that could leave the parties without any financial redress.
Video: Divorce in Ireland
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Deed of Separation
Many family disputes arising from marital breakdown may be settled amicably between spouses.
A Deed of Separation is a document that may be drawn up and executed by the parties to a marriage, where that marriage has broken down and where the parties do not wish to have recourse to the Courts for the purpose of agreeing to the terms of the breakdown. A fundamental provision of every separation agreement is an agreement that the parties will live apart.
Usually, a Deed of Separation will make provision for custody, access to children, maintenance, division of matrimonial property, and Succession Act rights.
The terms will be committed to writing and signed by both parties. The Deed will also attempt to deal with matters that may cause confusion in the future, such as the education of dependent children or the entitlement to apply for passports for dependent children. However, one such provision that a Deed may not make reference to, without first getting Court approval, is that of alteration of existing pension.
There are six grounds upon which the Court may grant a Decree of Judicial Separation:
- Adultery
- A spouse has behaved in such a manner that the other spouse can no longer be expected to reside with him/her.
- The spouse has deserted or forced the other to leave the home at least one year preceding the application for the Judicial Separation.
- The spouses have lived apart for one year immediately preceding the date of the application and the Respondent consents to such an application being made.
- The spouses have lived apart without an agreement for a period of three years prior to the date of the application.
- The marriage between both spouses has broken down irretrievably to the extent that the Court is satisfied that a normal marital relationship has not existed between the spouses for the period of at least one year immediately preceding the date of the application. This is the usual ground.
In granting a Decree of Judicial Separation the Court can make various orders
- Maintenance
- Family Home
- Property – declaratory or adjustment orders
- Barring Orders/Safety Orders
- Custody and access
- Succession rights – Extinguishing the rights that one spouse would have over the estate of the other spouse in the event of his/her death
- Pension adjustment.
- Life Cover
Divorce
Divorce is a fairly recent development in Ireland and the ban was lifted following a very controversial referendum in November 1995 and from 1997 one could apply for a Divorce in Ireland.
There is no obligation on spouses to have either sought a Judicial Separation or effected a Deed of Separation before seeking a Decree of Divorce.
In order to successfully obtain a Decree of Divorce from an Irish Court, it is necessary to satisfy the Court that:
- You have lived apart for four out of the five previous years.
- There is no reasonable prospect of reconciliation.
- Proper provision will be made for all members of the family.
- Either spouse must be domiciled in Ireland at the date of issue of the proceedings or that either spouse has been ordinarily resident in Ireland for one year before the date of issue of the proceedings.
Podcast: Divorce in Ireland
Alternatives to Court
ADR
Alternative dispute resolution is an alternative to litigation/court.
For sensitive matters, particularly family law disputes, ADR does not add to the conflict in question, where a Court situation can. It is a less stressful method for individuals who are already involved in a stressful situation.
Structured Negotiation
What the structured negotiation process seeks to do is to establish ground rules for negotiation to enable parties to be clear about what they can expect from the process and also what is expected of them.
It differs from collaborative law/practice in that the lawyer doesn’t make a commitment not to go court on behalf of the client and also the four-way meetings that are an intrinsic part of the collaborative process are an optional part of the structured negotiation process.
Collaborative Law
The collaborative approach involves both parties and both solicitors making a commitment at the outset of the case, to be open, honest, and transparent with each other.
It involves strictly controlled round table meetings with the parties and the solicitors in attendance. It rules out Court as an option with a view to giving separating or divorcing couples a greater impetus to sort out their differences themselves with the assistance of their solicitors and without the Judge imposing a solution that might be unworkable and to no ones liking.
Mediation
Mediation is a swift, cost-efficient method of dispute resolution. It is based on the principle that people can resolve their own disagreements if given the right encouragement.
A mediator is not the decision-maker but an independent, third-party to the process.
The function of a mediator is to facilitate a resolution between the parties.
A mediator does not judge who is right or who is wrong but works with parties to help them arrive at a solution to satisfy their interests.
Video: Divorce & Children
Lynch Solicitors for Information Purposes Only
Contact Us
If you have experienced a relationship breakdown, we can assist you and help you to assess the options that are available to you.
Click here to read our guide to marital breakdown.
For further advice or if you wish to discuss any other legal area please contact reception@lynchsolicitors.ie or telephone 052-6124344.
Where Mediation has halted on the basis of no agreement on ‘Access’ to Children, what is the best course of action?
i can only suggest that you re-commence the mediation process or activate the legal process . The legal process would usually involve a Court application on custody, access and guardianship.
John, can you advise what the outcome could be from a judicial perspective. A person leaves the Family Home which is held in their sole name due to erratic and violent behaviour from the other party, locks were changed by the party in the property, alarm changed, an Order was made in the District Court re giving the party that left keys and code but these were not furnished despite numerous requests, property is in arrears, bank threatening legal proceedings, party that has left has instigated divorce seeking the property back. Other party also has property in sole name which is rented, no contributions towards mortgage despite being requested, now the owner wants to rent property and to do so is going to change locks and take possession of family home to clear arrears to bank. Party that has left is unemployed and there is a child of the marriage.Your thoughts would be appreciated
A very general rule of thumb is that a Court will not usually take conduct into account when dealing with the money side of a breakup unless it is very serious in the extreme. Another rule of thumb is that where there is not enough to go round, the Court is inclined to split equally or as close to equal as possible. The big But is that there are no hard and fast rules and each case depends on the facts, how the case is run and how the judge views it.