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25/10/2021

John Lynch: Marriage breakdown...here are some of your divorce questions answered

This week's column in The Nationalist

Tipperary Tipperary Tipperary

John Lynch of Lynch Solicitors

Where do you start?

The first step to explore is the possibility of reconciliation through marriage counselling or personal counselling.
It is important that all parties are ready to deal with the practicalities of the break-up. To do this, you may need the help of professionals – psychologists, counsellors, mediators and lawyers.

If reconciliation is not a realistic option, you should see if you can get an agreement on the terms of separation. Where children are involved, the first priority is to attempt to reach an agreement on their care arrangements. When dealing with issues around children, the best interests of the child is the key.

It has long been the case that the courts take the best interests of the child into account when dealing with applications on issues that concern them. If there is no chance that you can agree, then you should discuss with your solicitor a strategy to bring the separation process to a conclusion as quickly and cost-effectively as possible.

What Happens If I Separate & Do Nothing?

When you separate, your status does not automatically change. You may still continue to be a co-owner of family assets; you may still inherit; you may continue to be entitled to financial support; you may still be entitled to a spousal pension.

And conversely, the other spouse may also be entitled to claim maintenance, inheritance, the share of assets or pension. It is always advisable to regularise matters at the first available opportunity to avoid unacceptable outcomes.

A marriage breaks up - what are the options?

There are a number of options that include a deed of separation or a judicial separation decree, nullity or divorce. A deed of separation is a document that may be drawn up and signed by the parties where the parties do not need to go to court to agree on the terms of the breakdown.

A separation agreement can be done at any stage – within a week of separation or at any time thereafter.

If you cannot agree, you have two options: judicial separation and divorce. You need to be living separate and apart for two years to get a divorce, but a judicial separation can be applied for after one year. The agreement of both parties is not required.

The difference between judicial separation and divorce is that you can only remarry after a divorce.

In granting a decree of divorce, the court can make many different orders, e.g., that one spouse maintains the other and the children, that the family home is transferred to one of the spouses, that neither spouse can make a claim to the other’s assets when they die, or that part of one spouse’s pension be transferred to the other.

Divorce

Divorce is almost identical to judicial separation, except that you can remarry after getting your divorce. The two processes are substantially the same. With the introduction of the two-year period, it is anticipated by many family lawyers that judicial separation will be rarely used. Nullity is where there was never a marriage in the first place. This can arise if the legal formalities were not complied with or there was a lack of consent or capacity. It is rare that nullity is used.

When can you apply for a Divorce?

This is one of the most commonly asked divorce questions. To get a divorce from an Irish court, you must prove that: You have lived separate and apart for two out of the three previous years. There is no reasonable chance of you getting back together.

All the family will be properly provided for. You or your spouse is either Irish or ordinarily resident in Ireland for one year.

Proper provision - what will the Court do?

When a couple decides to separate or divorce, one of the primary issues to be decided is how they share their assets and financial responsibilities going forward.

In dealing with the breakdown of a marriage, the courts will look to make what is deemed to be “proper provision” for the parties involved.

The court is mainly concerned to achieve fairness and justice. In the vast majority of cases where resources are at a minimum, the end result is often a 50/50 split. In the case of “more than enough to go around”, the court will look at certain factors such as the length of the marriage, contributions made by both parties, and the source of the assets. Each case, as is often the position in law, will be considered on its particular facts.

A FAST-TRACK Divorce?

You can do an uncontested or consent divorce after you have agreed to terms – between yourselves or with the help of your solicitor or a mediator.

It is usually possible to use a fast-track procedure in the court system that will formalise the separation by way of a divorce decree in a relatively short period of time.

We would recommend this as an option to save cost, the integrity of the family and save time and stress.

Afterthought

Get help to be in the right frame of mind to deal with the breakup. Deal with the children first and foremost and try to keep the family intact.

Keep in mind that the other person may not be as far advanced in the process - so, be patient.

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