Tipp FM Legal Slot – 17th April 2012
Marriage Breakdowns – The Options
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If a marriage breaks down and someone goes to a Solicitor what is the first thing that will happen?
The first thing which we always explore, and in fact we are mandated to advise, is the possibility of mediation and reconciliation. We give clients the names and addresses of people qualified to help in this regard, which includes counsellors & mediators. When we say counselling we mean both marriage counselling and personal counselling.
Are Counselling and Mediation confidential or can something some one says in counselling/mediation be used against them?
Yes it is absolutely confidential; the evidence of marriage Counsellors and mediators is not admissible in Court. This maintains the confidentiality which is a pre-requisite to availing of such assistance.
What is a Family Law Court like; can anyone go in and hear what is happening?
All Family Law proceedings which come before the Courts are generally kept as informal as practicable, with hearings being heard in private, this means that the public are not allowed to sit in the Court room during the hearing of family law cases. Also, no wigs or gowns are worn in Court – such measures go some way toward relieving the stress that spouses feel when their cases finally come to Court. Nevertheless, a day in Court with a family law matter for most is not easy.
Is it better for people to try and come to an agreement rather than fighting through the Courts?
Yes, absolutely, the Courts and the relevant legislation show a strong preference for situations where a solution is reached amicably between the parties before any recourse is had to the Court system. Recent trends have shown that in the vast majority of cases parties do reach an agreement rather than allowing the proceedings go to a full hearing before the Court- when the Judge will determine the issues between the parties.
If a marriage breaks up – what are the options available?
- Deed of Separation
- Judicial Separation
- Divorce
Nullity is also an option where the Court would make a finding that a marriage never existed. This is an extreme option which could leave the parties without any financial redress.
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 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 an alteration of existing pension.
If you enter into a Deed of Separation can you still apply for a Judicial Separation or a Divorce?
A Deed of Separation is a bar to proceedings for Judicial Separation, however it does not act as a bar to Divorce proceedings but the Court is required, in determining an application for a Divorce, to have regard to the terms of a Deed of Separation entered into between the parties and which is still in force.
Judicial Separation
Following marital breakdown and a period of separation, a spouse may, under the 1989 Judicial Separation & Family Law Reform Act as amended by the Family Law Act 1995, apply for a Judicial Separation.
The effect of obtaining a Judicial Separation is that both spouses are relieved of the obligation to cohabit with one another.
What Court do you go to for your Judicial Separation?
Both the High Court and the Circuit Court have jurisdiction to hear Judicial Separations, depending on the extent of the family property. If the family assets are in excess of €3 million the correct venue is the High Court.
On what grounds will the Court grant a Judicial Separation?
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 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.
What Court can grant a divorce?
Again as with a Judicial Separation an Irish divorce may be obtained in either the High Court or the Circuit Court depending on the extent of the family property.
Does a Judicial Separation or a Deed of Separation have to be signed before you apply for a Divorce?
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.
On what grounds can you apply for a 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 two out of the three 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.
You say that the parties have to have lived apart for four out of five years – does that mean that they have to live in separate houses?
No, parties can live separate and apart while under the one roof. The parties will have to satisfy the Courts that although they continue to reside in the same home they lead separate lives. They will need to produce evidence as to sleeping arrangements, preparation of meals, caring for children, holidays, payment of Bills and organization of finances. Often parties continue to reside under the one roof for the sake of the children or simply because they cannot afford to maintain two households until the Divorce is finalized.
What is the effect of a divorce?
The main effect as far as most parties are concerned is that they can re-marry.
Alternatives to Court – ADR
Alternative dispute resolution is an alternative to litigation / court.
In 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 the individuals who are already involved in stressful situation.
There are many forms of ADR:
- Structured Negotiation
- Collaborative Law
- Mediation
Structured Negotiation
In Family Law Disputes the traditional method used is by way of negotiation between the parties resulting in a Separation Agreement or when Proceedings are issued negotiation again between the parties and their Solicitors resulting in a settlement of the case and that settlement being made an order of the courts.
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. The separating or divorcing couple might be prepared to ‘go the extra mile’ to achieve a solution if they are in the collaborative process.
If the bargaining phase of the negotiation process is successful, then the legal representatives will set out in writing the terms of the agreement reached. Depending on what is agreed, it may be necessary to go to Court to get orders by consent. This is always very straightforward.
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.
