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Separation and Divorce

Marriage Breakdown

The breakdown of any marriage is a very difficult and emotional time, especially if children are involved, and Frizelle O’Leary & Co Solicitors in Enniscorthy understand this. We provide a sensitive and confidential service to our clients, making every effort to deal with family law matters as amicably as possible, and exploring the various options to enable you to minimise conflicts.
Our aim is to work with you to obtain the best possible outcome for all concerned, to advise you in a clear and understandable way, and to keep you fully informed of all developments along the way. We look at the financial and welfare issues, as well as the legal issues involved, and take in to account such things as property prices, tax implications, employment and business prospects, children, pensions, shares and savings. We will also advise you on provisions for the future, in terms of the death of a spouse, wills and succession rights for a spouse and children, and future changes in financial circumstances.
An initial consultation will allow us to give you advice based on your individual needs and particular circumstances, because although the legal guidelines remain the same, each individual case is different.

Separation Agreement

A separation agreement is less expensive and less stressful than a court case, and can be put in place if both parties can agree on how to deal with the various rights and obligations of each spouse.
A separation agreement is a legally binding document, and is called a Deed of Separation. The terms of the separation agreement are usually reached either through mediation or negotiation through solicitors - each spouse must have their own solicitor to ensure that they receive independent legal advice. A Deed of Separation addresses issues such as:

• Arrangement for custody and access in relation to children
• Occupation and ownership of the family home and any other property
• Maintenance and any lump sum payments
• Indemnity from the debts of the other spouse
• Succession Rights
• Debts
• Taxation

Legal Separation

If a couple cannot agree terms for a separation agreement, then an application can be made to the courts by either spouse for a Decree of Judicial Separation – commonly referred to as a Legal Separation. A Legal Separation is a separation through either the Circuit Court or the High Court, which does not put an end to the marriage. The Decree of Judicial Separation outlines the rights and responsibilities of each party, and they remain legally married while choosing to live separate lives.
There are certain criteria to be met in order for a Decree of Judicial Separation to be granted. The court must be satisfied that:

• The grounds for the application exist.
•  The couple has been advised about counselling and mediation.
•  Proper provision has been made for the welfare of any dependants
• If it is satisfied, the court will grant a Decree of Judicial Separation. The Decree confirms that the couple is no longer obliged to live together as a married couple. The court may also make orders in relation to custody and access to children, the payment of maintenance and lump sums, the transfer of property, the extinguishment of succession rights, etc.

An application for a Legal Separation must be based on one of the following six grounds:

• One party has committed adultery
• One party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them
• One party has deserted the other for at least one year at the time of the application
• The parties have live apart from one another for one year up to the time of the application and both parties agree to the decree being granted
• The parties have lived apart from one another for at least three years at the time of the application for the decree (whether or not both parties agree to the decree being granted)
•  The court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of the application for the decree.

As in all family law matters, cases are heard in private and the public is not admitted to the courtroom.

Divorce

A Decree of Divorce dissolves a marriage and allows both parties to remarry. Before a court can grant a divorce in Ireland, the following conditions must be met:

• The parties must have been living apart from one another for a period amounting to four out of the previous five years.
• There must be no reasonable prospect of reconciliation.
• arrangements must have been made, or will be made, for the welfare of the spouse and / or any dependent children

If the court is satisfied that the grounds are met, then the Decree of Divorce can be granted, dissolving the marriage. The court may also make orders in relation to custody of children and access to them, payment of maintenance and lump sums, transfer of property, succession rights, pension rights etc.
Because the parties must have been living separate lives for four out of the five years before an application for a divorce is made, this means that many separating couples obtain a Separation Agreement or a Legal Separation to regulate matters between them before they seek a divorce. In an application for a Decree of Divorce, the court can review any previous arrangements made by the parties such as a Separation Agreement, particularly if the circumstances of either party has changed.
There are many issues that your solicitor will need to discuss with you when seeking a Divorce Decree. These include such things as the welfare and requirements of any dependent children, the behaviour and health of both parties, the financial situations of both parties, property or assets in common (eg. pensions) and how to maximise your tax benefits following your divorce.