The breakup of a relationship gives rise to many issues including Divorce, Separation, Pension Adjustment Orders, Guardianship, Custody, Access, Domestic Violence, Maintenance, and possible Child Abduction.
If there is no possibility of reconciliation the question of negotiating a resolution of the matters in dispute has to be considered. Negotiation, mediation and collaboration with a view to resolving the issues should all be considered before Court proceedings are instituted. In all applications before the Court in relation to children the best interests of the child shall prevail. The 2015 Child & Family Relationships Act sets out the circumstances to be considered in determining what is in the best interests of a child.
A Divorce can only be obtained if the parties have been living apart for four out of the last five years and if there is no prospect of reconciliation and if full financial provision has been made for all dependents.
Separation can proceed in one of two ways, firstly by way of Separation Agreement or secondly if agreement cannot be reached by way of application to Court (Judicial Separation). If the parties have attended mediation a mediated agreement may have been reached and signed by the parties but that is not legally binding until a Separation Agreement has been signed.
FINANCIAL IMPLICATIONS OF SEPARATION OR DIVORCE
Full financial disclosure has to be made by both parties. Are there significant borrowings or are properties in negative equity? What is to happen the family home? Is it to be sold, retained by one party with the other party buying the other out or is it to remain in joint names for a period of time? Do either party have pensions and are Pension Adjustment Orders required? After the family home the pensions are frequently the next largest asset of the family unit and therefore consideration needs to be given to the necessity of making Pension Adjustment Orders.
FINANCIAL INFORMATION REQUIRED IN FAMILY LAW CASES
- PPS number for both parties.
- Copy Latest P60 and current payslip.
- If self-employed copy latest Accounts for business and latest tax return
- Copy Title Documents for all properties.
- Details of all Bank Accounts, Post Office A/c’s, Credit Union Accounts, Building Society Accounts etc.
- Details of all Shareholdings.
- Details of all Insurance Policies.
- Details of all Credit Card Accounts.
- Details of all loans, mortgages and liabilities.
- Details of all income including rental income, dividends, Social Welfare, Pension Payments etc.
- Details of all Pensions held including up-to-date Statement setting out details of the benefits under the scheme including any benefits to spouse and children.
- Details of all other assets and investments.
- Valuation for all properties.
Physical, sexual and psychological violence are covered by the Domestic Violence Acts and the reliefs that may be available are:-
- Protection Order – Temporary Order until the hearing of the Safety Order or the Barring Order. The person against whom the Order is made shall not use or threaten to use violence against, molest or put in fear the person who has applied for the Order or any dependent person.
- Safety Order – Shall not use or threaten to use violence against, molest or put in fear the Applicant or dependent person.
- Interim Barring Order – Temporary Order prohibits the person from using or threatening to use violence against, molesting or putting in fear the Applicant or dependent person, attending at or in the vicinity or watching or besetting a place where the Applicant or any dependent person resides.
- Barring Order – can be made for up to three years in the District Court or permanently in the Circuit Court, prohibits the person from using or threatening to use violence against, molesting or putting in fear the Applicant or any dependent person, attending at or in the vicinity of or watching or besetting a place where the Applicant or any dependent person resides.
The grounds for obtaining a state nullity are very limited. It is necessary to prove one of the following:-
- Failure to give notice to the Registrar.
- Bigamy – existence of prior marriage.
- Parties under age at the date of the marriage.
- The parties to the marriage are within the prohibited degree of relationship.
- Non-consummation of the marriage.
- Inability to sustain a normal and caring marriage relationship.
Financial provision for children has to be made until they are 18 or if in fulltime education until 23. Financial provision also has to be made for a dependent spouse. Applications for maintenance if not agreed can be made to the District Court or Circuit Court independent of separation or divorce proceedings. Maintenance Orders can also be made in divorce and separation proceedings.
Guardianship – usually both parents are guardians and they make all major decisions in respect of the children such as where they live, where they go to school, whether they are brought up in a particular religion and medical care decisions.
Custody – usually where both parties have been in a longterm relationship or married joint custody will apply. Custody is granted to the people with whom the children reside.
Access – the right to have regular contact with the children.
Same sex couples can choose to have their relationship registered as a Civil Partnership or they can choose to get married. Civil partners are also entitled to the benefit of shared home protection, maintenance, Succession Act Rights, Domestic Violence legislation and dissolution of partnership and separation and divorce.
“A Co-Habitant is one of two adults whether of the same or the opposite sex who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or Civil Partners of each other”.
There is some financial protection for co-habitants depending on the length of time they have lived together, whether there is a financial dependency and whether there are children. Entitlements for co-habitants are not automatic and application has to be made to the Court in the event of the death of the other party or the termination of the relationship. Only Qualified Co-habitants can apply to Court for redress. Qualified Co-habitants are:-
- couples who have been living together for a period of two years or more where there are one or more dependent children;
or couples living together for five years or more where there are no dependent children.