Marriage is deemed to be a legally binding contract entered into between two parties which is capable of being dissolved on the granting of a Decree of Divorce.

Section 5 of the Family Law (Divorce) Act, 1996 and Article 41.3.2 of the Constitution make provisions in law for the exercise of the court’s jurisdiction to grant the Decrees of Divorce and to make various other related orders which are often referred to as ancillary orders.

In Ireland, both the Circuit Court and the High Court have original jurisdiction to hear the divorce proceedings.

By way of an example, one of the most recent Divorce proceedings that our firm acted in was initiated in the Circuit Court as the value of the family assets did not exceed €1 million. The husband was a successful businessman and the wife assisted him in building up the family business by being involved in most aspects of the management of the business as well as looking after their children. They were married for 21 years and had 4 children, one of whom is 19 years old and in college. This case involved a number of issues such as the division of marital assets, access and maintenance in respect of the children and the division of pension assets.

Before a court can grant a Decree of Divorce, the court must be satisfied that:

  1. Either one of the spouses is domiciled in the Republic of Ireland on the date of the commencement of Divorce proceedings, or either of the spouses has lived in the Republic of Ireland for a year before commencing Divorce proceedings.
  1. That both spouses have lived separate and apart from one another for a minimum period of 4 out of previous 5 years before the proceedings are instituted. It is not a requirement that the spouses must have lived at separate residences, once it can be established that the spouses have led separate lives from one another. Another point to note is that the period of 4 years does not have to be continuous period of 4 years but can be accumulated.
  2. That there is no reasonable prospect of reconciliation between the parties.
  3. That proper arrangements (financial and otherwise) have been or will be made for the spouse and any dependent child(ren) of the marriage.

In this case, both the husband and the wife were primarily domiciled in Ireland. However the second element outlined at paragraph 2 above has not been met as the parties only lived separate and apart from each other for a period of 3 years at the time the separation proceedings were initiated by the wife therefore the proceedings were issued by way of a Judicial Separation.

The key difference between a Judicial Separation and a Decree of Divorce is that once a Decree of Divorce is granted, it provides the parties with a clean break from each other and entitles the parties to remarry. With a Judicial Separation, the parties are still deemed to be spouses for legal purposes.

Whilst the Judicial Separation proceedings were in train, we made an application for interim access for the children and maintenance for the children and on behalf of the wife. Whilst there was no interim access order made with regard to the eldest child who was 19 at the time, the court granted an interim maintenance order in respect of the eldest child due to the fact that he was still in full time education. In Ireland, maintenance payments with regard to the children do not automatically cease when the child reaches the age of 18. In fact, the maintenance continues to be payable in respect of a child up to the age of 23 as long as the child continues in full time secondary or third level education. The husband was ordered to pay a certain amount per week towards the maintenance of the children and the access arrangements ensured that the days for access were allocated to provide stability for the children. The interim orders remained in place until the full hearing of the proceedings.

When the matter appeared before the Court for hearing of the Judicial Separation proceedings, the relevant time period of 4 years had accumulated for the purposes of a divorce application. We proceeded to issue the divorce proceedings and strike out the Judicial Separation proceedings to save the parties on costs of having to return before the court and also to ensure a clean break between the parties. This was quite unusual however the Court acceded to our request and allowed our client’s application for a divorce on the grounds that the required 4 year period accumulated in the meantime, that there was no reasonable prospect of reconciliation between the parties (even though the parties attempted to reconcile on a number of occasions during the time of their separation, before the proceedings were instituted). The court considered whether the parties’ financial circumstances made proper provision for the children of the marriage and the wife. Given the wife’s involvement in the family business and the fact that she looked after the children to allow her husband to build up the business, the court ordered payment of maintenance by the husband on the same terms as that on the interim orders both for the children and the wife. The wife therefore is also entitled to a payment of maintenance and this shall continue unless she re-marries or her financial circumstances improve. It is important to note that it is not always the case that one party is automatically entitled to the receipt of maintenance from the other. In that regard the court takes into account the parties financial positions at the time of the divorce and a year previous to the divorce. In the present circumstances the Court was satisfied that all the criteria had been met and granted the parties the Decree of Divorce.

Unlike in the UK, the Irish Courts do not consider an element of fault when granting a Decree of Divorce. The Court’s main concern on granting an order for the dissolution of the marriage between two parties is that both parties are sufficiently provided for in terms of the parties’ financial circumstances, the family home is adequately dealt with and the children of the marriage are provided for in accordance with their needs.

Over the years Gary Daly & Company have been involved in some of the most complex divorce proceedings both at Circuit Court and the High Court level which involved issues such as the division of assets both, of personal and commercial nature, well-being of the children of the marriage, domestic violence situations and the division of pension assets.

It is always recommended that both parties avail of legal advice before embarking on one of the most difficult journeys of their lives, in particular where there are joint assets and children of the marriage.

If you are facing marriage difficulties please contact a legal representative who will be in a position to advise you on the suitable options available to you.