Divorce

Applications for a decree of divorce are normally made to the Family Circuit Court. These cases can also be heard in the High Court. Each case is heard in private. Once the decree has been made by the Court the marriage is dissolved and each parry may then remarry

Q1: What are the grounds for divorce?

A1: In order to obtain a decree of divorce the court must be satisfied that each of the following applies:

• That the spouses have lived apart from one another for a period of at least four out of the previous five years
• Tthat there is no reasonable prospect of a reconciliation between the spouses and
• That such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family.

Q2: Who can apply?

A2: Where either of the spouses is domiciled in the State or either of the spouses is ordinarily resident in the State throughout the period of one year preceding the institution of the proceedings then either spouse can apply for divorce.

Q3. If two people are living separate lives but in the same house, can they be said to be living apart from one another?

A3: The court regards spouses as living apart from each other where they are living in separate dwellings. The court may accept that in certain circumstances the spouses live apart from each other even though they are living under the same roof. There must however be compelling evidence to establish that they have been living separate lives and essentially operating two separate households in the one property.

Q4: How does the Court decide if proper provision is made in all the circumstances?

A4: When an application is made to the court the spouses must each disclose full information relating to their financial circumstances and all information relevant to the welfare of the children of the marriage. The court must then satisfy itself that the arrangements agreed between the parties provide adequately for all the family in the circumstances. Where there is no agreement or where the Court is not satisfied that the arrangements are adequate then the court has power to make any Orders which it considers necessary to ensure that proper provision is made in the circumstances. These Orders are called 'Ancillary Orders'.

Q5: What other Orders can a court make to ensure that proper provision is made in the circumstances?

A5: As well as making orders in relation to the custody and access of any dependent children of the marriage the court can also make orders relating to maintenance, either periodic payments or lump sum payments or both. It can make Property Adjustment Orders which may involve transferring the ownership of property from one spouse to the other. It can make a Pension Adjustment Order if appropriate. It can make a Financial Compensation Order to make provision for a spouse or a dependent who may through the divorce lose certain benefits that would otherwise be theirs. The court can order the sale of a property in which one or both spouses has an interest. In addition the court can make orders under the Domestic Violence Act 1996, namely a Barring Order or a Safety Order. (See AIM leaflet on Domestic Violence.)

Q6: Once the divorce is granted and all the Ancillary Orders made, can any of the Orders be varied?

A6: The concept of the 'clean break' is not really part of the Irish divorce legislation. Issues relating to custody, access and maintenance for dependents can always be looked at again by the Court on application to it by either spouse or even a third party. The court will always regard the welfare of children as paramount. Certain financial orders can also be varied by the Court once it is established there has been a change in circumstances or that there is some new evidence that was not previously before the Court. Only where one of the spouses remarries is the other relieved of financial responsibility for that former spouse. The Decree of Divorce cannot be reversed.

Q7: If the marriage breaks down because of the behaviour of one spouse, will this be taken into account in the divorce proceedings?

A7: The grounds for divorce in Ireland are based fundamentally on the length of time the spouses have been living apart. Responsibility for the breakdown of the marriage is not relevant so far as establishing grounds is concerned as divorce is based on a 'no fault' principle. However in making ancillary orders in any divorce application the court must take many matters into account. One of the things it will look at is conduct of the parties 'where that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it'.

Q8: If the spouses entered into a separation agreement and now want a divorce, are the terms of the agreement still binding on theparties if this is what they wish to use as the basis of their divorce?

A8: The court when considering whether proper provision is made for the parties will take the terms of a separation agreement into account. It will look at the agreement and the circumstances of the parties and if it considers it necessary will make appropriate changes.

Q9: What matters does the Court take into account when granting a decree of divorce to ensure proper provision is made?

A9: The Court decides each case on its own facts and considers the circumstances of each of the parties and the effect the Decree of Divorce will have on each member of the family and on any third parties affected by the Decree. The court specifically takes account of the following matters in deciding what ancillary Orders should made:

    (a) the income and earning capacity and financial resources of both spouses.

    (b) the financial needs, obligations and responsibilities which each spouse has or is likely to have.

    (c) the standard of living of the spouses before the proceedings .

    (d) the age of the spouses and the length of their marriage.

    (e) any physical or mental disability of the spouses.

    (f) the contribution which each of the spouses has made or is likely to make to the welfare of the family.

    (g) whether the earning capacity of either of the spouses has been affected by the marriage.

    (h) the income or benefits to which either spouse is entitled.

    (i) the conduct of each of the spouses.

    (j) the accommodation needs of either spouse.

    (k) the benefit (e.g. under a pension scheme) which one of the spouses may forfeit by virtue of the divorce.

    (l)  the rights of any third party affected by the divorce.

Q10: What are the tax implications of divorce?

A10: This very much depends on the circumstances of the parties and professional tax advice is recommended. However divorced couples may opt for joint assessment for income tax purposes, as can separated couples provided they are both resident in Ireland and neither spouse has remarried.

It is important to note that after divorce the parties are no longer spouses and transfer of assets will not be exempt from inheritance Tax and Capital Gains Tax. Any transfer of property arising from the Court Order on the Divorce will however be exempt.

Q11: Can I still inherit from my spouse after we are divorced?

A11: Once the divorce is granted the parties are no longer spouses and therefore the right to inherit under the Succession Act 1965 is not available. However the court can make an Order providing for a divorced spouse out of the deceased spouse's estate if it thinks it appropriate and if such an application is made within the time limit set down in the Family Law (Divorce) Act 1996. The Court cannot make such an Order where the spouse seeking the Order has remarried.

Q12: Is it expensive?

A12: It very much depends on how much work is involved in the Application and there is therefore no fixed charge. It may be that one or both of the parties will be entitled to legal aid and this aspect should be investigated before approaching solicitors in private practice.

Foreign Divorce

Legal recognition of foreign divorce in Ireland is a complex area of law involving proof of domicile in a country where the divorce has been granted. Many Irish people sought a foreign divorce in the belief that this entitled them to remarry in this jurisdiction prior to the introduction of the Family Law (Divorce) Act 1996. This was not always the case and often lead to complications. Partners in second relationships, where one or both have a foreign divorce are often vulnerable under Irish Law where that divorce is not recognised here. Now that it is possible to obtain a divorce in Ireland this problem is likely to decrease, but it is still an area that will affect some people.

Q1: Are foreign divorces recognised in Ireland?

Al: Yes, but only in certain limited circumstances. The law is broadly as follows:

• (a) Such a divorce will be recognised under Irish law if either the husband or the wife was domiciled in the State granting the   divorce at the date when divorce proceedings commenced.

• (b) It is irrelevant which spouse was then domiciled abroad.

• (c) It is open to an Irish domiciled and resident spouse to obtain a divorce in the jurisdiction of his/her foreign domiciled spouse and such a divorce may be recognised here.

• (d) A foreign divorce is also recognised here if it is granted in a country where neither of the spouses is domiciled, but the country in which both are domiciled recognises it, or, if they are not domiciled in the same country, if it is recognised by the laws of each of the countries in which the spouses are domiciled.

Formerly it did not matter if the foreign divorce application was made before or after the passing of the Domicile and Recognition of Foreign Divorces Act 1986. However there was a distinction made between the two in the High Court where it was decided that divorces granted before the passing of the Act and based on habitual residence rather than domicile may be recognised in certain circumstances. This matter may be further clarified by the Court and legal advice is advisable where in doubt.

Q2: What is domicile?

A2: Domicile is a complicated legal concept. Stared very broadly, a person is domiciled in the country where he/she is born or, having emigrated, where he/she is resident and intends to reside permanently or at least indefinitely

Q3: How can I satisfy myself as to the status of my foreign divorce?

A3: An application can be made to the Court seeking a Declaration as to the validity or non-validity of a foreign divorce. Either spouse can make such an application as call any other person who has, in the opinion of the Court, a sufficient interest in the matter. A Personal Representative of a deceased spouse could apply as indeed could the Revenue Commissioners, because the validity or non-validity of a foreign divorce could have implications in relation to the payment of inheritance tax.

Q4: Who is likely to challenge a divorce or remarriage?

A4: Usually the former (i.e. divorced) spouse or the children (if any) are likely to do so. Challenges often arise over succession rights .It is important therefore to come to a satisfactory arrangement about these and other relevant matters with the divorced partner. This call be done through a separation agreement or it is possible that the parties call acquire a valid divorce in Ireland under the terms of the Family Law (Divorce) Act 1996.

Q5: What legal problems might arise if a second marriage is deemed invalid?

A5: The partners have none of the protection of laws relating to married couples. They have no rights under:

• The Family Home Protection Act 1976
• The Succession Act 1965
• Family Law (Maintenance of Spouses and Children) Act 1976,- except with regard to maintenance for their children.

Legal guardianship of the children would belong to the mother. A 'widow' in such cases will not receive a widow's pension. A deserted partner may qualify for a one parent family allowance but will be unable to pursue the former partner for maintenance on his/her own behalf. If the Revenue Commissioners are informed that a marriage is invalid they call refuse the normal tax concessions available to married couples. On the death of one partner the other might also find that he/she has a liability to pay Capital Acquisition or Inheritance Tax on any property or assets, inherited or acquired from the deceased partner. (For further information see AIM Leaflet on Cohabiting)

Q6: If my spouse has obtained a foreign divorce, which is legally recognised here, am I still entitled to seek financial support or relief from him/her?

A6: Yes, under the Family Law Act 1995 the Court can make Orders for financial relief similar to the Orders for Judicial Separation (see AIM leaflet on Judicial Separation). The Foreign Divorce must however be recognised here and the applying spouse must not have remarried. The leave of the Court to bring such an application must first be obtained. Legal advice is recommended.

Before Divorce was introduced into this jurisdiction by the Family Law (Divorce) Act 1996 some people attempted to secure the right to remarry by seeking a foreign divorce. It should now be unrealistic to go elsewhere to obtain a divorce now that it is available in Ireland.