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24 May 2022

EXPLAINER: Marriage Broken down? Your questions answered by Lynch Solicitors

EXPLAINER: Marriage Broken down?  Your questions answered by Lynch Solicitors

EXPLAINER: Marriage Broken down? Your questions answered by Lynch Solicitors

Where do you start?

The first step is to ensure that there is no possibility of reconciliation through marriage counselling or personal counselling.

Even if the marriage is over, all parties must be ready to deal with the practicalities of the breakup. 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 issues such as the children, living arrangements, ongoing financial support and other financial matters.

Where children are involved, the priority is to attempt to agree 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 child's best interests into account when dealing with applications on issues that concern them. If there is no chance you can agree, you should discuss a strategy to bring the process to a conclusion as quickly and cost-effectively as possible with your solicitor.

What happens if I separate and do nothing?

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

Several options 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 after that.

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.

With the introduction of the two years, it is anticipated by many family lawyers that judicial separation will be rarely used.

Judicial separation can be an option after a year of separation. Divorce is almost identical to judicial separation, except you can remarry after getting your divorce. The two processes are substantially the same.

There is also the option in very limited circumstances of a Civil Nullity. Nullity is where there was never a marriage in the first place.

This can arise if the legal formalities are not complied with or a lack of consent or capacity. Nullity is rarely 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 2 out of the 3 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 1 year.

Proper Provision - What will the court do?

When a couple decides to separate or divorce, one of the primary issues to be resolved 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 to achieve fairness and justice. In most cases where resources are at a minimum, the 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.

As is often the position in law, each case will be considered on its particular facts.

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 through a divorce decree in a relatively short time.

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

Afterthoughts

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.

There is a significant benefit in reaching a conclusion – it enables you to move on and re-build your life.

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

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