MB Solicitors have experts in Family Law based in our Dublin 3 office. We understand that a breakdown of a family relationship is both an emotive and stressful situation. It is perhaps the most distressing event any person has to deal with. We provide practical advice and sensible solutions to help reduce the stress levels involved.
Divorce means that the marriage is dissolved. Once divorced you can remarry or enter a civil partnership.
Who can apply?
In order to obtain a divorce, you must have lived apart from your spouse for a period of at least four years during the preceding five years. Living apart usually means living in separate homes however, it is possible to live apart while sharing the same home. The court must be satisfied that there is no reasonable chance of reconciliation between the spouses.
How do I apply?
Only a Judge can grant a divorce and therefor it is necessary to make an application to the court. This done by issuing what is known as a Family Law Civil Bill in either the Circuit Court or the High Court.
How long does it take?
The length of time it takes to get a divorce depends on the complexity of the case. If there are a lot of assets and/or children/ the application is contested it will take longer to obtain the divorce.
What happen once the divorce is granted?
Once the divorce is granted the marriage is dissolved. It does not mean that the person’s right to Guardianship has ended where there are children involved. The court may make what are known as “ancillary orders” in relation to the division of any property owned by either of the spouses.
When making the ancillary order the court will try to ensure that such provision exists or will be made for each spouse and any dependant member of the family as is proper taking into account all the circumstances of the case.
The court will consider the following before making any ancillary order:
- Income, property, earning capacity of either spouse
- Financial needs and responsibilities
- The standard of living enjoyed by the family before the separation
- The age of the spouse
- The contributions made by either spouse
- Accommodation needs of either spouse
- Any physical or mental disability of either spouse
What is a Judicial Separation?
A judicial Separation is a court order which means that the married couple no longer have to co-habit. However, the reason a person would seek a judicial separation is to avail of the other ancillary orders which the court can make. For example, the court will be able to make orders in relation to the following:
- The family home
- Other property
Who can apply?
Either spouse can apply if they are domiciled in the State on the date of the application commencing the proceedings or if they are “ordinarily resident in the State throughout the period of one year ending on that date”
What are the grounds for applying?
A person may seek an order on one or more of the following grounds:
- That the other spouse committed adultery
- The other spouse has behaved in such a way that you cannot reasonably be expected to live with the other spouse
- You have been deserted by your spouse for a continuous period of one year before making thee application
- You have lived apart for at least one year before making the application and your spouse agrees to the application
- You have lived apart for three years
- The court is satisfied that the marriage has broken down and has not existed for at least one year before making the application
Do I need a Judicial Separation?
If you can agree the terms of your separation then it is not necessary to commence court proceedings for judicial separation. A Separation agreement would be more cost effective.
Essentially, a separation agreement is a binding contract between spouses and usually contains the following terms:
Agreement to live apart
This is a fundamental provision in every separation agreement where the parties agree to live apart.
Guardian and Custody of Children
If there are children under the age of 18 it would be usual for both spouses to remain as guardians. However, provision can be made for the custody of children to be provided to one spouse with rights of access being provided to the other spouse.
The amount of maintenance payable (if any) is the sum agreed as a result of negotiations that take place between your spouse’s solicitors and us. However, a maintenance order may be made if it appears to the court that a spouse has failed to provide such maintenance as is proper in the circumstances.
It is usual for the separation agreement to detail how the property will be distributed.
Where the legal title to the family home is held in the sole name of one spouse and the other spouse directly or both directly and indirectly contributes to its acquisition that other spouse may successfully claim a beneficial interest in the family home. Direct payments would include monthly mortgage repayments.
The courts have held that monies contributed by a spouse for improvements in the family home do not amount to a contribution to its acquisition and unless there was an agreement to the contrary (either express or implied) such payments are ignored in determining a spouse’s beneficial interest.
This is the right to inherit from your spouse’s estate. It is usual for a clause to be inserted by the spouses renouncing their rights to inherit in each other’s estate.
The trustees of your pension scheme are not bound by the terms of your separation agreement. The trustees can only make payments in accordance with the terms of the pension scheme.
Judicial Separation and divorce
By entering a separation agreement, you cannot apply to the courts for judicial separation. A separation agreement does not act as a bar to divorce proceedings in the future.
Civil partnerships are partnerships which can be registered under the Civil Registration Act, 2004 on application by two persons of the same sex.
A court can grant a decree dissolving a civil partnership where:
- at the date of institution of the proceedings, the partners have lived apart from one another for a period of at least two years during the previous three years;
- and provision that the court considers proper having regard to the circumstances exists or will be made for the civil partners.
Rights of Civil Partners
Once a Civil Partnership has been registered each of the partners acquires rights, including:
- (a) The shared home in which the Civil Partners ordinarily live will be subject to protection similar to that which applies in the case of married couples so that generally it is not possible for the partner who owns the home
to dispose of it without the prior consent in writing of the other partner.
- (b) A court can on application make a maintenance order requiring one civil partner to provide maintenance to the other. These orders can be enforced by the court
- (c) The Act provides the right to inherit on civil partners, similar to that of a surviving spouse. If the deceased leaves a civil partner and no children, the surviving civil partner’s legal right is to 50% of the estate. If the deceased has left children then the surviving partner’s share is to one-third of the estate. In case of intestacy if the deceased leaves a civil partner and no issue, the civil partner inherits the entire estate. Provision is included to permit a child of the deceased civil partner to make a court application within six months of the date of extraction of a grant of representation to the deceased’s estate seeking an enlarged share.
The court can make a range of financial orders on granting a dissolution of a civil partnership, similar to those which may be granted on the separation of married couple, including:
- maintenance orders
- property adjustments order
- financial compensation orders (provision by way of insurance arrangement)
- pension adjustment orders
- property adjustment orders for sale of property or relating to occupation of property
- orders providing for a surviving civil partner from the estate of a deceased former partner.
The Act also contains provision for a civil partnership to be annulled.
What is maintenance?
Maintenance is the financial support by way of periodic payments.
What is my entitlement to maintenance?
A spouse can apply to the court to have to have the other spouse provide such maintenance for the applicant spouse as is proper in the circumstances. While there is no requirement for the couple to be living apart the person seeking maintenance must be married to the person from whom they are seeking maintenance.
What is proper maintenance?
The court in deciding what is proper maintenance will consider the following:
- The income and earning capacity of either spouse or dependent children
- The property of either spouse
- Any other dependent children of which either spouse is a parent
- The financial responsibilities of the spouses towards each other and towards any dependent children of the family
- Whether either of the spouses deserted the family
Is it possible to change the amount maintenance?
Yes, the maintenance can be varied.
How do I get maintenance for my Children?
A parent or legal guardian, whether married or not, can apply for maintenance from the other parent for their children.
A summons can be issued in the District Court by a parent seeking maintenance from the other parent. The parents will be required to complete an affidavit (sworn statement) detailing their income and expenditure. If the parents cannot agree on the amount of maintenance to be paid the court on reviewing the affidavits will set the amount of maintenance.
Guardianship and new rights for cohabiting couples and unmarried fathers and same sex couples
What is Guardianship ?
A guardian of a child in Ireland has a duty to maintain and properly care for the child and has rights to make decisions about the child’s religious and secular education, health requirements and general welfare.
Who has Automatic Guardianship ?
Married parents of a child are joint guardians and have equal rights in relation to the child. The rights of parents to guardianship are set down in Section 6 of the Guardianship of Infants Act, 1964.
Unmarried Couples Automatic Guardianship:
For children born outside of marriage, only the mother has automatic rights to guardianship.
Under the Children and Family Relationships Act 2015, unmarried fathers are entitled to automatic guardianship where:
- if he has lived with the child’s mother for 12 consecutive months after the 18th January 2016, including at least 3 months with the mother and child following the child’s birth. If there is a disagreement as to whether they have been cohabiting for the time mentioned, an application can be made to court for a necessary declaration in the District Court or Circuit Court.
- where civil partners or a cohabiting couple have jointly adopted a child under an adoption order the civil partners or cohabiting couple shall be guardians of the child jointly.
What happens where the mother does not consent to the father being appointed a guardian ?
The father must apply to the court to be appointed as a joint-guardian. Contact a solicitor and apply directly to the District Court (This is possible, irrespective of whether your name is on the child’s birth certificate or not).
The Court will take into account the following:
- The benefit to the child of having a meaningful relationship with his/her parents/relatives/other persons.
- The views of the child ( where possible)
- The physical, psychological and emotional needs of the child and the effect a change in circumstances will have on that child.
- The child’s social needs.
- The child’s age and special circumstances.
- Any harm which the child has suffered or at risk of suffering.
- The willingness and ability of each child’s parents to facilitate a relationship with others.
- The capacity of each person to care for the child.
- If there is domestic violence within the home, the court must give special consideration to same.
- The conduct of the parents may be considered in a limited context where it is relevant to the child’s welfare and best interests.
The fact that the mother does not consent does not mean an application for guardianship will be refused. The overriding principal is the best interests of the child.
Stepfathers, Civil Partners and Cohabitants and Guardianship
- A step-parent, a civil partner or a person who has cohabited with a parent for not less than 3 years may apply to the court to become a guardian where they have co parented the child for more than 2 years.
- A person who has provided for the child’s day-to-day care for a continuous period of more than a year may apply for guardianship if the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship.
A parent can nominate a temporary guardian who can be appointed by the court if the parent is suffering from a serious illness or injury which prevents them from exercising their guardianship responsibilities in respect of their child.
If the court appoints a guardian to a child where one or both parents are alive, the guardian will not generally have the right to make certain major decisions about the child unless that right is expressly granted by the court.
Removal of Guardianship rights
Fathers and others who have been appointed joint guardians by a court or by statutory declaration can be removed from their position if the court is satisfied it is in the child’s best interest. The only way a mother can give up her guardianship rights in Ireland, is if the child is placed for adoption.
The issue of guardianship may arise if one of you has a child. You may have guardianship rights in relation to your child and you may wish your same-sex partner to also have guardianship rights. It is possible for your partner to apply to become a guardian of the child.
Guardians and making a will, appointing a Guardian
It’s very important if you are the guardian of a child (especially if you are a mother and sole guardian) that you make a will, appointing a guardian to act on your behalf in the event of your death. It’s strongly advised that you talk this over with someone who could act as guardian and that he/she gives his/her consent to being named in your will as testamentary guardian.The child’s surviving guardian (if there is one) will then act jointly with the new guardian.
A Protection Order can be made by court where it considers that there are reasonable grounds for believing that it is required for your safety or welfare or that of a dependent child. The order can be applied for when:
- Applying for a safety order
- Between making an application for a safety order and the time it takes the court to grant/refuse the order.
The order is the same as a safety order. It protects you from assault and other acts such as abuse or threatening behaviour until the hearing of your case.
Who can apply for a protection order?
- A spouse
- A former Spouse
- A Parent
- Other relationships
How do I apply for a protection order?
To apply for the order, you need to attend the local family district court.
How long does a protection order last?
It will last until the hearing for your case. It is designed to give you protection until the outcome of your case is decided by the court. If you are applying for a Safety Order the original protection order will expire once your application for the safety order has been granted or refused.
What happens if the protection order is breached?
It is an offence to breach an order of the court and anyone who is in breach is liable to a fine and/or imprisonment.
Do I need a solicitor?
It is not necessary to have a solicitor to with you to make an application for a protection order. However, the protection order is only an interim relief (ie it only lasts until the full hearing). Therefore, once you have obtained the protection order you should contact us
MB Solicitors are experienced family law solicitors with a proved track record in handling all aspects of domestic violence cases. If you need advice on any aspect of domestic violence feel free to give us a call or leave a message in the contact form.
A court can make a Safety Order where it is of the opinion that there are reasonable grounds for believing that the safety or welfare of a person or child requires that such an order is made.
A Safety Order directs the person against whom it is made not to
- use or threaten to use violence against, molest or put in fear the applicant or a dependent child on whose behalf the application is made: and
- if residing at a place other than where the applicant or the dependent child resides to not watch or beset that place.
Who can apply for a Safety Order?
- A spouse
- A former Spouse
- A Parent
- Other relationships
How do I apply for a Safety Order?
In order to apply for a Safety Order in Dublin you should attend the Family District Court and make an application for the safety order. A summons will be issued against the person you are seeking the Safety Order against and the case will be heard by the family law court.
How long does a Safety Order last?
The court in granting a Safety Order will decide how long the Order should last. They usually range from 12 months to 5 years.
What happens if the Safety Order is breached?
Failure to comply with an order is an offence which can lead to a fine and or imprisonment.
MBSolicitors are experienced family law solicitors with a proved track record in handling all aspects of domestic violence cases. If you need advice on any aspect of domestic violence, feel free to give us a call or leave a message in the contact form.
A barring order is an order by the court requiring the person against whom it is made:
- If living at the same house/apartment as you or a dependent child to leave that house/apartment or
- If not living in the same house/apartment the order prohibits that person from entering the house/apartment until the court shall specify.
The court can also make an order prohibiting the person against whom the order is made from any of the following:
- Using or threatening to use violence against you or any dependent child;
- Molesting putting in fear you or a dependent child;
- Attending the vicinity or watching a place where you or any dependent child resides.
Who can apply?
The following people can apply:
- A spouse
- A former Spouse
- A Parent
How do I apply?
You can apply by attending the local family District Court.
How long will the order last?
The order will last up to 3 years.
If you have any queries in relation to any aspect of family law you can submit them through our contact form. Alternatively if you would like to arrange an appointment or request a call back you can do so through the contact form.