Marriage, what if it does not last as long as you both shall live? - by Lynch Solicitors

There has been a hike in Divorces in Ireland since 2015, with 1,542 more Divorces recorded in Ireland in 2021 compared to 2015. This equates to approximately a 35% increase in Divorce rates, with a total of 5,856 Divorces recorded in 2021. This figure, combined with that of Judicial Separations recorded shows a total of 6,406 marriage breakdowns in the country in 2021.

According to a report conducted by the “Family Practice”, there was a 35% increase in the number of resolved family law cases. This shows the importance of contacting a Family Law Solicitor to help your case reach a satisfactory completion for all involved. 

When we are approached by someone who is going through difficulties in their marriage the first thing we explore is the possibility of reconciliation and mediation. We can offer clients names and addresses of people qualified to help. This includes counsellors and mediators. Counselling and mediation are confidential. The details of sessions with marriage counsellors and mediators is not admissible in Court. Anything you say should not be used against you in Court.

We suggest mediation as an alternative to going down the Court route. One objective of mediation is to try to reinstate a relationship at a new level. This has the benefit of making it easier to address issues about children. When dealing with issues around children, The Best Interests of the Child is the key!

We would, on occasion, also recommend that a person seek counselling to deal with the high level of stress associated with a breakdown.

If a marriage breaks up there are different options available. These include a deed of separation, judicial separation, divorce or, in certain circumstances, nullity.

DEED OF SEPARATION

Many family disputes arising from marriage breakdown may be settled amicably between the spouses. This can be done with the help of a solicitor or mediator or a combination of both.

A Deed of Separation is an agreement that may be drawn up and completed by couples when their marriage has broken down. They agree to the terms of their separation rather than having the Courts do so. Every separation agreement has a clause that the parties will live apart.

Usually, a Deed of Separation will provide for custody, access to children, maintenance, division of matrimonial property, and succession rights. The terms will be put in writing and signed by both parties. While a child’s future education can be included, Court approval will be required for the alteration of pensions.
If you enter into a Deed of Separation you cannot then, sometime afterwards, apply for a Judicial Separation.

You can still apply for a Divorce, but the Court may take into account the terms of the Deed of Separation.

DIVORCE

Since 1997 people can apply for a Divorce in Ireland on marriage breakdown.

To get a Divorce 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 provisions will be made for all members of the family.
• Either spouse is 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.

The first condition on living apart does not specifically mean that you and your spouse have to have lived in separate houses. Spouses can live separately and apart while under one roof.

The parties will have to satisfy the Courts that although they continue to live in the same home they lead separate lives. The main effect of divorce, as far as most parties are concerned, is that they can re-marry.

Can We Do 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.

NULLITY

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. Therefore, in recent years, it has become rare.

What option you take will vary depending on your personal circumstances.

It is worthwhile mentioning that there are proposals to change the law on Divorce to make it available after two years rather than four years.

This may very well have a similar effect on Judicial Separation as Divorce had on Nullity.

People may very well bypass judicial separation and go straight to Divorce.

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.  If you do nothing it is important to review your assets and your Will immediately.

It is always advisable to regularise matters at the first available opportunity to avoid unacceptable outcomes.