It is interesting that the general public is still interested in what the grounds for divorce are in Ireland. When I was thinking about it, I felt that it may have a lot to do with TV shows we grew up with as children but also because we forget that Divorce or separation is still a very new phenomenon in Ireland.
One has to remember that before 1989, the only way to separate from your spouse was to obtain a ‘Divorce a mensa et thoro’. The translation, believe it or not of this is “bed and board”. In other words, this form of separation was only to remove your obligation to cohabit with your spouse. This could only be granted if the applicant could prove the following grounds “adultery”, “cruelty” and the quaintly titled “unnatural practices”. This regime probably explains our memories from the movies of lawyers employing seedy private detectives to obtain incriminating photos of adultery.
Fortunately, in 1989, Ireland changed its laws and introduced the concept of judicial separation. As well as formalising the distribution of assets and developing the law on how we manage marital breakdown today, it laid down new grounds to give spouses jurisdiction to apply for a judicial separation.
As I will explain later, this concept of jurisdiction is an important one for you to understand before I proceed any further. In basic terms, Judges in Ireland are not anointed as Gods who can do as they please. They are only empowered to make certain orders based on certain powers which the elected government has given them. In addition, they can only make these orders based on considerations that the Government dictates.
Basically, I am saying they are limited in what they can do. A man may drive dangerously 100 times in a row and the judge may wish to jail him for 10 years but the Road Traffic Act states 12 months is the maximum sentence. If you understand that, you will understand that to implore a judge to give a higher sentence is an exercise in futility. He/She literally cannot do it as they do not have the power.
What Are The Grounds for Divorce?
So for people who wish to apply for Judicial separation, they must fulfill the following grounds for divorce:
- The other spouse has committed adultery.
- The respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the other spouse.
- The other spouse has deserted the applicant for a period of one year immediately prior to the date of application.
- The spouses have lived apart from one another for a continuous period of one year prior to the application and the other spouse consents to separation.
- The spouses have lived apart from one another for a continuous period of three years prior to the application.
- The marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of application
As those paying attention may ask, what is the point of the first five grounds for divorce in Ireland when the last ground is by far the easiest to fulfill? Good question. You would be right in saying that the vast majority of judicial separations are granted on ground number 6 and it is mostly better as it is not fault-based and doesn’t require the degree of animosity that is required for instance with adultery.
The other reason is that technically speaking that the “conduct of the parties” is a factor that would be taken into account by a judge when ultimately deciding how to divide the marital assets. Some would say that by utilising the grounds of “cruelty”, a court would be more likely to give the Applicant a larger share of the family pie. This view would be largely offset by the general view that the conduct of the parties should only be taken into account if it is “obvious and gross” and even then it would be just one factor to be taken into account. The courts have in my experience been reluctant to delve too deeply into the conduct of the parties and this approach has especially become more pronounced as a result of the introduction of the Divorce Act in 1996.
The Divorce Act 1996 and ‘No-Fault Divorce’
This Act created a no-fault divorce system in Ireland. One forgets how progressive this step was when you consider that no-fault divorce was only recently introduced in the United Kingdom. Essentially the only grounds that were needed were that the spouses have lived apart from one another for a period of (or periods amounting to) at least 2 during the previous 3 years. This “living apart” concept includes couples who reside in the same house.
In short, a couple would not be “living apart” if they went on holidays together, went for dinner regularly, and shared a bed. The other prerequisites are that there is no prospect of reconciliation between the spouses and the court considers that proper provision has been made for the spouses and any dependents of the family. Initially, the period to wait for a divorce was 4 out of the previous five years. This period was only changed in 2019. It has had the effect of vastly reducing the number of judicial separation proceedings. What is the difference between judicial separation and divorce? When divorced, one can remarry.
So will judicial separations become a thing of the past? Most probably not. In my experience, some people want to move on with their lives and want to commence proceedings immediately but do not fulfill the time criteria to apply for a divorce. What occurs sometimes is that proceedings can commence as judicial separations and by the time they are finalised, they can be converted to Divorce proceedings once the requisite time periods have elapsed.
In addition, the more archaic grounds of adultery and cruelty can be utilised to start proceedings immediately when there is an urgency to an applicant’s position. This can be where the applicant fears that their spouse may be dissipating the family’s assets to put them out of reach of the other spouse and the court system. In those circumstances, to obtain a type of freezing order, we need to make an application for judicial separation or divorce in order to have proceedings in being to make our urgent application. As we have seen, the judge doesn’t have jurisdiction to make an order unless requisite grounds are pleaded to give him jurisdiction.
If the applicant cannot say that the couple has lived apart for 2 years, then one cannot apply the 2 years, and if the applicant cannot say that no normal marital relationship existed for a period of one year, then they are out of luck. That is unless they can plead that the other spouse has committed adultery or that the other spouse “has behaved in such a way that the applicant cannot reasonably be expected to live with him/her”. These grounds require no time and allow the spouse in these circumstances to make their application.
So Do The Grounds For Divorce Matter in my case?
As you can see for the vast majority of people in Ireland going through a marital breakdown, the grounds pleaded for the divorce will be completely irrelevant. It will only be in very rare circumstances it arises as we effectively live in a no-fault jurisdiction where the courts are not interested in who if anyone is at fault for the breakdown of the marriage. Regardless, you may want to contact a local family law solicitor to help you with your case, especially when assets are involved.
