Divorce in Ireland is a complex topic. Any person who has decided to divorce their spouse has always said to me that it was one of the most painful decisions that they have had to make. The emotional experience of separation has been likened to a grieving cycle of denial, anger, bargaining, depression, and acceptance. While going through this heightened emotional state and the difficulties of dealing with their estranged spouse, they will eventually come around to investigating the practicalities of how this separation will work.
There will be the mundane day-to-day jobs of having to open new bank accounts, put bills in one person’s name, etc. Then, they will have to consider what are the arrangements for the children of the marriage. Who is going to reside with them, and who is going to move out? How am I going to pay for a mortgage on my own? How is he/she going to find a place to rent in this market? We can’t afford to separate?
This leads to the investigation stage of all parties reading up and googling their rights. Essentially they want to know how this process of divorcing in Ireland works, and how to divide up a couple’s joint assets. They also want to know ultimately, if they cannot agree, what a judge would most likely do, How much it costs, how long it takes, is it just like TV? etc.
So how do you get a divorce in Ireland? I will attempt to provide a layman’s guide to divorce in Ireland here, detailing this whole procedure without resorting to quoting legislation or case law.
Contents:
The Courts Have The Final Say on Divorce in Ireland
The Law System for Divorce in Ireland
Prerequisites to Divorce in Ireland
The Divorce Courts in Ireland
Divorce Mediation is Always an Option
Documents Required for Divorce in Ireland
The Process of Divorce in Ireland
Settle the Divorce or Have Your Day in Court
Divorce in Ireland – Final Steps
The Courts Have The Final Say on Divorce in Ireland
The first thing to remember is that a marriage can only be adjudicated on or ended by a court. It cannot be done by yourselves together or by a mediator or arbitrator or some other alternative to a court. Ultimately, any divorce agreement in Ireland has to be approved by a court. Why? Because that’s what the Dail (i.e. You the People) have decided – that marriage is a sacred institution in Ireland and should not be entered lightly or ended lightly.
The bottom line is there are no Elvis impersonator Marriage celebrants in Ireland and nor are there “quickie” divorces. The reason that it is important to remember is that because you have to go to court, you are required to engage with the formal, sometimes arcane court system in Ireland. It is important to note that Family Law Litigation is just another leg or arm of the general litigation in Ireland. Litigation is simply one person suing another person for something (i.e. money) to not do something (don’t fire me), or make them do something (make the council give me a permit to sell hot dogs outside Lansdowne Road).
The Law System for Divorce in Ireland
I won’t belabor the point but in Ireland, we have what is known as the common law system of litigation. You may ask why I bring this up. The reason is that in European countries they have an inquisitorial system which is essentially a judge-led system that seeks to find the truth. The common law system is more like a boxing match where the judge is more akin to a referee in the dispute but also calls the winner.
In Ireland, because of this, the onus is on each side to properly prepare and have everything in order and bring everything perfectly to the judge. They and, by extension, their support staff and the courts’ service are not there to be proactive and help you achieve justice. They are just there to facilitate you in transmitting what you bring to the courts in front of the judge. Their role is not to advise you or comment on whether you should do this or that. Needless to say, this makes being a person representing oneself quite difficult. This is why most people in Ireland utilise a ‘translator’ or native in this foreign field (i.e. a family law solicitor). Keep this whole principle in mind as we move through the process.
Prerequisites to Divorce in Ireland
So the longest journey starts with a single step. The first step is whether you fulfill the prerequisites. If you do not you cannot even start the process. What are these prerequisites to divorce in Ireland?
- You and your spouse must be “living apart” for at least two years during the previous three years. Living apart can include living in the same house. Essentially it means that there is no intimate and committed relationship i.e. that you do not live as a marital couple. You do not go to dinner together, don’t go on holidays, share the same bed, or cook each other’s meals.
- One spouse must be domiciled in the Republic of Ireland or have lived in the country for one year before applying for a divorce.
- There must be no prospect of reconciliation.
- There must be proper provision for each spouse and any dependent children. This is the essence of Divorce. Even if both spouses agree, the Judge must rule whether there is a proper provision being made. If you want to read more about the time a Divorce takes in Ireland read our article on the subject.
The Divorce Courts in Ireland
Once you have met these criteria, you can now begin the process. Unless you are fortunate enough to be very wealthy, all Divorce/Judicial Separation applications are dealt with in the circuit court. What does the circuit court mean? There is essentially a three-tier court system in Ireland based on the perceived importance of a matter at issue. There are marked differences between the courts.
The District Court is the lowest court and is the most informal court and is generally more oral-based than paper-based. They deal with more minor issues generally (i.e. petty crime, financial cases less than €15,000, and guardianship).
Circuit Courts are more formal and deal with serious criminal cases with a jury, more valuable financial cases, and Judicial separations.
The High Court is the most formal and deals with Murder and Criminal Rape Cases, the highest value financial cases, and Family Law cases with Property in excess of 3 million.
There is a District Court in most small towns in Ireland whereas there are only eight circuit courts (one High Court). The Courts’ website lists the location of each of the courts. To be eligible to apply for a Divorce in a Certain county in Ireland, one must either live or work within that area. So you know your circuit court area, you are required to issue a number of documents but first, you should consider mediation.
Divorce Mediation is Always an Option
If you have engaged a divorce solicitor in Ireland they are specifically required by the law to discuss the option of mediation and give you a list of mediators. I won’t delve too deeply into mediation but it is simply a way of sorting any differences between you and your ex-partner, with the help of a third person who won’t take sides. The third person is called a mediator. They can help you reach an agreement about issues with money, property, or children. To be clear, you cannot force your ex-partner to go to mediation. Also, mediators are not marriage counselors and do not provide legal advice. It is also not appropriate in circumstances of domestic abuse or a coercive control situation. Arguably, it is also not appropriate where there is a large difference in the financial positions of both spouses or where it is difficult to assess a party’s net worth i.e. when self-employed.
Documents Required for Divorce in Ireland
In circumstances where mediation has not been successful or not chosen, the documents required to start the process are:
- Family Law Civil Bill: This is akin to the application form. The first part, the indorsement of claim, sets out the history of the relationship and marriage from the Applicant’s (the person making the application, the Respondent being the other spouse) position. It sets out similar to a story, what houses they bought, what jobs they had, what each person contributed, and what children they have. It then progresses to explaining why the relationship has ended according to the Applicant.
The Second part then proceeds to “the applicant’s claim” which sets out the “ancillary reliefs” the Applicant wants. Typical reliefs include maintenance, the family home, other property and assets, custody, succession rights, personal safety and the safety of children, and pensions. This is quite technical and requires the Applicant to list under what precise section of an act the order that they wish the court to make. Reverting to my original point that the courts don’t investigate, they simply rule upon what you asked.
If you don’t include certain provisions, then the court does not have the power to make these orders. An example of one of these provisions is “An Order pursuant to Section 10(1)(b) of the 1995 Act and/or Section 36 of the 1995 Act and/or Section 31 of the Land and Conveyancing Reform Act, 2009, determining all issues in relation to the title to and/or possession of any property the subject if the within proceedings, or property to which the Respondent is entitled, or such share or portion thereof as to this Honourable Court shall deem proper”. Solicitors normally engage specialist family law barristers to draft these technical documents.
- A sworn Affidavit of Means: This is a document that needs to be carefully prepared. It sets out what you own i.e. assets, what income you have and what debts or liabilities you have, and your outgoings. Remember that this is a sworn Affidavit and should not be signed lightly as you most likely will have to vouch or substantiate everything that’s on it with bank statements, Folios, P60s, Revenue documentation, etc. If you engage a solicitor they will guide you in how to prepare the same. A useful tip for analysing your expenses is to simply “keep everything on card” for a month and then arrive at an average. It is quite an exhaustive document and it will pay to take time and consideration to complete it properly as in addition to vouching for each part, you may end up being cross-examined by a barrister on this very issue.
- A sworn Affidavit of Welfare (if there are children involved). This is again quite an exhaustive document that sets out the personal details of the children of the marriage, their residence, health, maintenance, childcare arrangements, contact with children, education, and training.
- A document setting out that you have been advised about mediation. This is only required if you are represented by a solicitor.
- Original State Marriage Certificate. When I first started Family Law it didn’t surprise me so much that clients didn’t remember their date of marriage. It did surprise me that so many people couldn’t locate their marriage certificates. At present, it can take a number of weeks to obtain a replacement certificate so I would suggest this should be your first step.
The Process of Divorce in Ireland
So once these documents are all completed, they are sent to the relevant circuit court office for issuing. This means that they are stamped with the court office seal and given a record number. They are then served by you on your spouse. I would remind you again that the onus is on you or your family law solicitor to know what to do with these documents. There is no Judge pushing the process or advising on the next steps. Without going into too much detail the proceedings have to be served (the legal term for given) on your spouse. A declaration that this has happened must be prepared and sworn in front of a commissioner for oaths. If you cannot successfully serve your spouse then a whole other set of Legal documentation needs to be prepared. This can be onerous and expensive if you are employing a solicitor.
In theory, the Respondent’s spouse has 10 days to lodge their appearance once they have received the Civil Bill. An appearance is simply a document saying I acknowledge and will engage with the proceedings. Within 10 days after that, the respondent is supposed to supply their Defence which is the counterpoint or rebuttal to the allegations made in the Civil Bill. They are also supposed to file their Affidavit of Means and Affidavit of Welfare. This all sounds like an extremely quick process. It would if anybody actually followed these timelines. In reality, I don’t think I have ever had someone lodge their appearance within 10 days or their defence within 20 days. Even with specialist divorce solicitors engaged by both parties, the reality is that it can be closer to 3 months rather than 3 weeks to receive a Defence.
Again, in theory, within 28 days of the Defence being filed, both sides should exchange vouching documentation which substantiates their Affidavit of Means. Depending on the extent of the assets and incomes, this can be quite an extensive amount of documentation. If there is a dispute or queries as to the documentation provided then this can take even longer. When divorce solicitors are engaged, invariably queries will be raised as they are obliged to verify the exact financial status of the Respondent/Applicant.
There then follows a discrete preparation court procedure called case progression. This is the courts seeking to manage the workload of the courts and to narrow the issues at dispute between the parties. So if there are issues regarding disclosure of documentation relating to the accounts of a spouse’s business, this can be ruled on at this stage. The goal is that when a case is given a hearing date (which it ultimately is) that the court knows how long the case will take approximately and that the case is ready for that hearing. If you want to read more about the time a Divorce takes in Ireland read our article on the subject.
Settle the Divorce or Have Your Day in Court
Finally, we have arrived at a position where both sides know the financial position of each spouse in the marriage and generally an attempt (even in the most acrimonious war-of-the-roses type of divorce) will be made to settle the case. We would always advise clients that it is best to attempt to agree on a compromise even though not perfect than to have a potentially unworkable solution imposed upon you by a Judge who has no insight into your life. In addition to this, there will be added time and added expense ( if you want to read more about the cost of a Divorce in Ireland read our article on the subject). Where solicitors are involved this normally takes the form of a pre-trial settlement hearing. If an agreement can be reached, it is reduced to writing and brought in front of the court, and orders are made on agreement.
Where an agreement cannot be reached, then a full hearing is held. This is close to the TV version of Court Cases like Kramer v Kramer (not Liar Liar). It is where the Applicant swears and gives evidence and is then cross-examined by the barrister for the Respondent and in turn, the Respondent gives evidence and is cross-examined. To be clear, this process is all held in a private courtroom and no public is allowed to enter.
However, although Family Law Court Proceedings are less formal than standard court proceedings, there is no avoiding the fact that giving evidence and being cross-examined about one’s private and intimate details by strangers is not a pleasant experience. Ultimately, the Judge will decide and divide the matrimonial property on the basis of making proper provisions for the current and future financial needs of both spouses. It is not an adjudication of the behavior of each spouse in the marriage (If you want to read more about this subject you can read our article about it here).
Divorce in Ireland – Final Steps
Ultimately, it is now that the Decree of Divorce or Judicial Separation in Ireland is issued and the various orders for lump sum payments, division of property, payment of maintenance, and pension adjustment orders are made.
Over the next few weeks and months, these orders are taken up and taken into effect. From the beginning with that most painful decision made in the first paragraph to the culmination of the legal proceedings can be quite a journey.
If I could add any advice to this guide it would be that when you are undertaking this journey of divorce in Ireland and if you are choosing a legal representative (which I suggest you do if you have any assets) make sure you use somebody who is a specialist in divorce in Ireland. In addition, ensure you hire someone who you get along with personally as you will be spending a lot of time with them.
