Divorce

To legally Divorce in Ireland, you must apply to the Court for a Decree of Divorce. Unlike separation, you cannot simply decide with your spouse to Divorce and sign an agreement to that effect. However, that is not to say you must have a contentious Court hearing.  Many applications for a Divorce are made by spouses who have agreed terms many years previously and are already legally separated (whether by Separation Agreement or Court Order) and are satisfied to continue the existing arrangements between them after Divorce.

 

The fundamental difference between Divorce and legal Separation is that after a Decree of Divorce has been granted, the parties are no longer “spouses” in law and are free to remarry.

Eligibility:

To be eligible for a Divorce, there are 3 requirements set out in the Constitution and the Family Law Divorce) Act 1996 (as amended by the Family Law Act 2019, as follows:

  1. The spouses must have been living apart from one another for at least 2 out of the previous 3 years as at the date of the institution of the proceedings.  Before 1 December 2019, this was 4 out of the previous 5 years.  Living apart includes spouses who live in the same home as one another but are not living together as a couple in an intimate and committed relationship.

  2. There must be no reasonable prospect of reconciliation

  3. “Proper provision” must exist or be made by the Court before it can grant a Decree of Divorce.

 

Divorce in Ireland is a “no fault” system meaning you do not need to prove that your spouse is guilty of wrongdoing to obtain a Divorce.

 

Spouses need not be legally separated before they can apply for a Divorce. However, in deciding whether to make provision and in deciding what provision should be made, the Court shall have regard to the terms of any Separation Agreement which has been entered into by the spouses and is still in force.

 

An application can be brought to the Circuit Court (specifically to the Court area where either party ordinarily resides or carries on business) or the High Court. The majority of cases are dealt with by the Circuit Court.  Where the property assets exceed €3m, unless the parties agree otherwise, the proceedings must be brought to the High Court.

 

The Court can make a variety of Orders once it grants a Decree of Divorce.  In making those orders it is obliged to make “proper provision” for the spouses and any dependent children of the parties.  The Orders the Court may make are provided for in the Family Law (Divorce) Act, 1996 and include, for example:

 

  • Custody and access orders relating to children under the age of 18 years of full time dependents

  • Maintenance of dependent children

  • Maintenance for one spouse

  • Orders under the Domestic Violence Act, 2018

  • Transfer or sale of the family home

  • Transfer or sale of other property

  • Declarations as to ownership of property

  • Declarations as to responsibility for debts

  • Orders that a party maintain or put in place a life policy

  • Division of pension benefits

  • Blocking order prohibiting one or both parties applying to the court after the other party’s death seeking a share out of that deceased spouse’s estate

 

Children are considered legal dependents if they are under the age of 18 years or, having attained the age of 18 years is in a full time third level course of education, up to the maximum age of 23 years.  If a child has a permanent disability they may be considered a dependent child for their lifetime. 

 

Like with Judicial Separation cases, the Court is required to have regard to certain factors when determining “proper provision” for the spouses and any dependent children.  These factors are set out in Section 20 of the Family Law (Divorce) Act, 1996 as follows:

 

  • the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future

  • the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise)

  • the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses separated, as the case may be

  • the age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived together

  • any physical or mental disability of either of the spouses

  • the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family

  • the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived together and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family 

  • any income or benefits to which either of the spouses is entitled by or under statute

  • the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it

  • the accommodation needs of either of the spouses

  • the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the Decree of Divorce concerned that spouse will forfeit the opportunity or possibility of acquiring

  • the rights of any person other than the spouses but including a person to whom either spouse is remarried

 

In deciding whether to make provision and in deciding what provision should be made, the Court shall have regard to the terms of any Separation Agreement which has been entered into by the spouses and is still in force.

 

In deciding whether to make an order in favour of a dependent member of the family the court shall, in particular, have regard to the following matters:

 

  • the financial needs of the member,

  • the income, earning capacity (if any), property and other financial resources of the member

  • any physical or mental disability of the member,

  •  any income or benefits to which the member is entitled by or under statute,

  • the manner in which the member was being and in which the spouses concerned anticipated that the member would be educated or trained,

  • the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future

  • the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise)

  • the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses separated, as the case may be

  • the accommodation needs of the member.

 

Many spouses engaged in Divorce proceedings resolve those proceedings amicably without a full hearing.  In such cases, they usually enter into “Terms of Settlement” or “Terms of Consent” which sets out what Court Orders they wish the Court to make.  The Court must be satisfied that the Orders proposed make “proper provision” for the parties and any dependent children before it will grant the Orders.

 

If the parties do not agree matters, a Court hearing will be scheduled and a Judge assigned to hear the parties in evidence, hear any witness and then give its judgment.  

 

Court hearings typically take 18-24 months from the date of issue of court proceedings however, where the parties promptly comply with the Court rules, hearings can take place more quickly.

 

The parties are required under the court rules to make full disclosure to one another of their respective financial circumstances, through the swearing of Affidavits of Means and provision of vouching documentation for a minimum of 1 year prior to the instruction of the proceedings.  Typically such vouching is for longer than one year, as the parties will be required to update it prior to a hearing date.

 

Between the date of the issue of proceedings and the full hearing date, applications can be made for certain Orders including:

 

  • interim maintenance for a spouse and/or dependent child/ren

  •  interim custody and access Orders

  • Orders appointing a child expert to interview the parties and the children and to provide recommendations to the Court as to the future care arrangements of the children.  Such assessments often involve eliciting the children’s views also

  • Orders under the Domestic Violence Act 2018, such as Protection Orders or interim Barring Orders

  • Order restraining a spouse from making a disposal of an asset or transfer of an asset outside the jurisdiction or otherwise deal with property if it believes that the spouse is doing so with the intention of defeating the other spouse’s claim for Orders.

  • Orders setting aside disposals of property made by one spouse if to do so would allow the Court grant Orders or different Orders for the other spouse.