Pretty much most people feel that they will have an uncontested divorce. They have seen the film “war of the roses” and are well aware that divorces are more expensive the more acrimonious they become. In recent times family mediation has become far more popular and often times divorcing couples will emerge from this process with a mediated agreement. So what happens next with an uncontested divorce in Ireland?
Do both parties have to agree to divorce in Ireland?
No, If a person is separated for a from their spouse for the last two years, they are entitled to make an application for a divorce. They do not have to receive any agreement from their spouse.
What to Expect in an Uncontested Divorce in Ireland:
The First question is whether the couple should do the process themselves. Predictably as a solicitor, I would say no. In fact, I felt so strongly about my opinion on uncontested divorce in Ireland that I wrote an article about it. So if you take my advice and engage a family law solicitor, what should you expect? To answer the first most obvious question, you both are required to engage separate solicitors. There are lots of great solutions in the United Kingdom and elsewhere which have created solutions for this very problem but they do not exist (fortunately or unfortunately depending on your point of view) in Ireland. So you speak to your solicitor, and they essentially tell you that this agreement is super but we are obliged to review everything ourselves as ultimately the Judge in the Court is required to be satisfied that proper provision has been made for both spouses going forward after the Divorce.
What will normally happen is that the case should progress quicker and more amicably than your “war of the roses” type case. The usual situation would be that the solicitor would write to the other spouse’s solicitor suggesting that each party exchange sworn affidavit of means together with vouching documentation with a view to agreeing on a settlement. In English, this simply means that for court purposes, both spouses must itemise all their assets, liabilities, incoming, and outgoings and put them in a document and swear or affirm that what they say is true. As well as this, they must provide bank statements, visa card statements, Copy folios, Pension statements for all the incoming, etc to the other spouse’s solicitor. It is always surprising that new information frequently becomes available to the ex-spouse during this vouching documentation stage.
What About a Separation Agreement?
Proceedings are issued in the same way as any case ie depending on the length of time apart either Judicial separation or Divorce proceedings from the Circuit Court (See FAQ for the nuts and bolts). You may sensibly ask if there isn’t there something called a separation agreement that can achieve all this, without the need for a court intervening. Such a thing exists but I feel it is not an adequate solution. Again, I felt so strongly about it that I wrote an article about why it is not wise to have a separation agreement in these situations. Once Proceedings are served (sent to the other side) either the mediated agreement can be “ruled” by getting a date in court and the Judge approving this agreement by seeing if it seems fair on the basis of their respective affidavit of means. Alternatively, both sides’ legal teams can meet and create a new agreement or settlement which will be signed by both spouses. A Court date can then be sought again to “rule” the settlement. Both parties are required to be in court but it is really just a formality. There is no “hearing” insofar as there is no cross-examination of witnesses, it is just really both parties saying that they agree to the terms in front of the judge.
What are the Next Steps in Uncontested Divorce in Ireland?
Within a few weeks, the orders will be sent to the divorce solicitors and the orders are brought into legal effect. This means that if for example, one spouse receives 30% of another spouse’s Defined benefit pension, then what’s called a Pension Adjustment Order is prepared by the solicitor, signed by the judge, and forwarded to the relevant pension authority. The transfer of property is given effect by a conveyance and if one party refuses to sign documents, these documents can be signed by the judge to give effect to the settlement. Lump sum payments of money can be made if so ordered. If any of the terms of the settlement are not implemented by either party, then the case is relisted before the Judge and the Judge will question the relevant spouse as to why they have not given effect to the terms. The Judge will no doubt impress upon the relevant spouse, the consequences of refusing to comply with the order.
Should You Get a Family Law Solicitor Involved?
The question may be asked, won’t getting the divorce lawyers into all this just cause more arguments and break up the mediated agreement? Maybe, Yes. In our Defence, Family Law solicitors are trained litigators in a common law system. This means that the whole system is based on an adversarial system of two competing legal teams battling it out like boxers with the Judge as referee. Our goal once engaged is to “win” ie get our client the best deal we can possibly get. If our client has agreed to something because they weren’t great negotiators or were not au fait with the law or were not aware of the extent of their spouse’s wealth or if there is an imbalance of power in the relationship, then we are under a duty to advise them of this. This is why we are paid. This is why the government of the people implemented legislation that states that proper provisions must be made for both spouses after a divorce. This only works if both parties know accurately the respective financial positions and if both parties are equally able to negotiate. It is not surprising that when most people are informed that the deal that they agreed on was nowhere near the deal that they could have secured for their future, then they decide to try for a better deal.
To be fair, in a properly mediated agreement, with equal bargaining power there is no necessity that the agreement should not be again approved by the respective solicitors.
The good news is that when there is some form of mediated agreement or general agreement, then a case will normally take a lot shorter. One could budget for the case being finalised within 8 -14 months from start to finish if a couple starts with an agreement and if both spouses remain amicable. Again to conclude, if both parties are relatively amicable, the top tip is that both spouses retain specialist family law solicitors. This sounds counterintuitive but from a solicitor’s point of view, the smoothest negotiations/cases involve both solicitors who both know what they are doing and are reasonable in their attitude. If the opposite number is not familiar with family law or is not reasonable then the case can, unfortunately, grow legs and time can be extended completely unnecessarily. In short, engage a specialist in family law, and ask your spouse to do the same. It will save a lot of time in your attempts to have an uncontested divorce in Ireland.
