EXPLAINER: What happens when your marriage breaks down?

A relationship breakdown can often be traumatic and upsetting for all involved. Every relationship breakup brings unique challenges and hurdles, whether a couple is living together, parents of children, or a married couple.

What are the options available?

1. Deed of Separation
2. Judicial Separation
3. Divorce

Deed of Separation

A Deed of Separation is a document that may be drawn up and signed by the parties to a marriage where that marriage has broken down, and the parties have agreed on the terms of the separation. It is often called a legal separation.

Usually, a Deed of Separation will set out the agreement on custody, access to children, maintenance, division of matrimonial property, and Succession Act rights.

A separation agreement can be done at any stage – within a week of separation or at any time thereafter. It can be done by agreement or negotiation between solicitors. It can also be done through mediation, put into writing, and “legalised” by the Solicitors.

Judicial Separation

The effect of getting a Judicial Separation is that both spouses are relieved of the obligation to live with one another, and the issues that flow from the marriage breakdown are formalised/determined by a Court.

There are six grounds upon which the Court may grant a Decree of Judicial Separation:

1. Adultery
2. A spouse has behaved so that the other spouse can no longer be expected to reside with them.
3. The spouse has deserted or forced the other to leave home at least one year preceding the application for Judicial Separation.
4. 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.
5. The spouses have lived apart without an agreement for a period of two years before 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 at least one year immediately preceding the date of the application. This is the usual ground.

Divorce

Divorce is now the most common option, but it requires parties to live separately and apart for two years or more. Parties can live separately and apart under the one roof.

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.

To successfully obtain a Decree of Divorce from an Irish Court, it is necessary to satisfy the Court that:

1. You have lived apart for two out of the three previous years.
2. There is no reasonable prospect of reconciliation.
3. Proper provision will be made for all members of the family.

What orders can a court make?

In granting a Decree of Divorce or a Judicial Separation, the Court can make various orders, including:

• 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 other spouse’s estate in the event of their death.
• Pension adjustment.

Assets - 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 in the future.

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 with achieving fairness and justice.

The Court will consider a list of criteria in making proper provision, and this includes the following:

• The income
• The financial needs
• The standard of living previously enjoyed by the family
• The age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another
• Any physical or mental disability of either of the spouses
• Contributions (direct and indirect)
• Conduct of each of the spouses, but only if that conduct is such that, in the opinion of the Court, would be unjust to disregard it, and it must be “gross and obvious.”
• The accommodation needs of either spouse.

Can we do a fast-track divorce?

A fast-track divorce is possible if you have agreed on everything, such as children, maintenance, assets, pensions, the family home, and succession rights.

There are a number of caveats:

1. The Court will need to approve any agreed terms and will want to make sure that proper provision is made for all parties.
2. There should be full disclosure of all assets and liabilities.
3. You must satisfy the legal requirement of 2 years separate and apart with no prospect of reconciliation.
4. As a safeguard, both parties should be independently advised on the terms.

Alternatives to court - Mediation

Mediation is a quick, cost-efficient method of dispute resolution. It is based on the principle that people can resolve their 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 wrong but works with the parties to help them reach a solution that satisfies their interests.

Some Tips

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.

Be fully informed before you commit to any decision that has long-reaching effects. Plan how you are going to deal with the process. Get to the end of the process as soon as possible without compromising your proper provision entitlements.

A significant benefit of reaching a conclusion is that it enables you to move on and rebuild your life.

For further advice or if you wish to discuss any other legal area please contact reception@lynchsolicitors.ie or telephone 052 6124344.

The material contained in this blog is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.

*Sponsored Content