Family Law Separation Advices
Set out below are the options that are available to individuals in a martial breakdown situation: |
By mutual consent
This method involves discussions or negotiations leading to the conclusion of a written Separation Agreement. These discussions can be conducted:
a) directly with each other
b) with the assistance of a Mediator
c) through lawyers representing each spouse independently.
Mediation is a process which encourages the separating couple to co-operate with each other in working out mutually acceptable arrangements on all or any of the issues that present on the breakdown of their marriage, these include the issue of financial support, family home, property, pensions, succession and other problems relating to the separation. It is the mediator’s role to meet with the couple and try to create a climate of co-operation to help couples reach an agreement that they believe to be fair, equitable and workable on an amicable basis.
Mediation is available from The Family Mediation Service, First Floor, St. Stephen’s Green House, Earlsfort Terrace, Dublin 2. Telephone: 6344320.
If a mediated agreement is reached then the parties bring that agreement to their respective Solicitors and it is transposed into a formal Separation Agreement. If you or your spouse does not wish to go to mediation then you can go straight to your Solicitors and your respective Solicitors will endeavour to reach an agreement. Again, this results in a Separation Agreement.
A Separation Agreement is subject to the ordinary law of contract, and can be enforced as such. The normal agreement contains certain standard clauses, eg: an agreement to live separate and apart, non-molestation clause, maintenance clause, clause relating to the division of property and succession, agreement relating to the family home, a clause relating to any life policies and pension schemes, clauses dealing with medical expenses and medical insurance and any other matter relevant to your particular circumstances. This method of separation is dependent on the goodwill of both parties.
As it is not possible for spouses through a Separation Agreement to bind the Trustees of a pension scheme, to ensure that a pension will operate in a certain way, one must obtain a Pension Adjustment Order and this can only be done on foot of Court proceedings and is thus one of the drawbacks of an agreement by consent.
Court Order
A Judicial Separation under the 1989 Act may be obtained on one or more of the following grounds:
The Respondent has committed adultery. Where there has been adultery, it cannot be relied upon if the parties have, after the adultery, and with knowledge of it, lived together for a period of one year. The person who committed the adultery cannot rely on the ground for the purpose of obtaining a Decree under the Act.
The Respondent has behaved in such a way that the Applicant cannot reasonably be expected to live with her/him.
There has been desertion for a continuous period of at least one year immediately preceding the application.
The spouses have lived apart from one another for a continuous period of at least one year and the parties consent to the Decree.
The spouses have lived apart from one another for a continuous period of at least three years.
The marriage has broken down to the extent that the Court is satisfied in all the circumstances that a normal marital relationship has not existed for a period of at least one year immediately preceding the date of the application.
The last ground mentioned above is the most common ground on which applications are made and ultimately granted, namely that the marriage has broken down to the extent that the Court is satisfied in all the circumstances that a normal marital relationship has not existed for a period of at least one year immediately preceding the date of the application.
Divorce
Since 1996, a Divorce may be obtained where at the date of the institution of the proceedings, the spouses have lived apart from one another, for a period of or periods amounting to, at least four years during the previous five year period and there is no reasonable prospect of a reconciliation between them.
In family law matters, where the Court is asked to make the decisions for the parties, the Court will also take account of the circumstances of the break-up and the interests of both parties. The Court will also deal with property issues and will take into account property prices. What the Court tries to achieve is a balance, such that both parties are able to move on, without a diminution in living standards, if possible.
The practicalities of determining the needs and resources available to the parties are dealt with in a very straightforward manner. Each party is asked to prepare an Affidavit of Means detailing all of their income and assets and all their normal expenditure. They are effectively asked to make lists of their spending and requirements. The list will cover day to day items, as well as holidays, socialising, presents, etc. One is required to prepare an Affidavit of means and vouch that documentation to enable both sides to make full disclosure to the other party. Failure to make full and comprehensive disclosure could result in a Court overturning the agreement at a later stage, so it is vital that full disclosure is forthcoming from both parties. |
