Urban legends on divorce in Ireland and other queries.
Urban legends.
The family law process in Ireland is blighted by urban legends. The following are a list of some of the common urban legends surrounding divorce in Ireland.
When do I get my 50%?
What 50%? The legislation says nothing about 50%. It directs the court must make proper provision for the parties and dependants involved. It is fair to say that on average in cases where the parties are older and their kids grown up and left home the courts have a tendancy to move more towards a 50/50 split. This depends on the circumstances of the parties however. The court can make whatever order it deems appropriate.
I am the husband and that means I have no rights and loose everything.
Not so. Proper provision means proper provision. The situation regarding fathers rights is improving. It is fair to say that the courts are reluctant in general to give fathers very large amounts of access. Courts must take schooling and study arrangements into account for young children.
In terms of financial provision the court will take the husband’s financial circumstances into account. It does not mean that he will get 50% of the assets. It may be less or more. The courts will review the global family situation before making any orders.
I am not seeing my children so I do not have to pay any maintenance.
Wrong! Maintenance and Access are two different things. Parents should always seek to make provision for their children whether or not they have access to their children. If you cannot obtain access to your children take legal advice.
I want to get access to my children. Which court do I apply to?
It depends on the circumstances. In some counties it can be cheaper and quicker to seek access in the District Court. There are many District Courts throughout the country and invariably there is one near you. Lawyers charge less to attend the District Court than the Circuit Court.
You can apply for access in the Circuit Court as part of divorce or separation proceedings. However, it can prove more costly than going to the District Court.
Remember that the District Court does not deal with applications for divorce in Ireland. It can deal with other applications pursuant to a divorce if so allowed by the Circuit or High Court.
My spouse is refusing to sign the passport application forms for the children.
You can apply to the District Court if you are encountering difficulties in this regard. Your spouse is a notice party to the application. It is advisable to take legal advice if you are encountering difficulties in this regard.
I am am Grandparent. My son is divorcing his wife. Can I see the children?
As a grandparent you can request mediation to agree access arrangements with your daughter in law. In default of agreement you can apply to the District Court for leave to bring an application for access to your grandchildren. Bear in mind the courts are slow to give grandparents access where they conculde that it is a father seeking supplemental or additional access through the back door to access he already has.
My common law spouse and myself are splitting up. We own a house. Do we need a divorce?
If you are not married you do not need a Divorce. If the arrangements concerning the house are in dispute try mediation or collaborative law. A different set of rules and legislation applies in respect of dividing assets where parties are not married. It is a complex area and legal advice is strongly reccomended.
The history of divorce in Ireland
Divorce existed in Ireland before the 1937 Constitution. After 1937 divorce no longer existed in Ireland until the constitutional amendment in the mid nineties and the subsequent Family Law (Divorce) Act of 1996. Ironically in ancient times in Ireland back in the days of the Brehon Laws an advanced set of divorce rules were in existence. The first Divorces were brought before the courts in Ireland in 1997. The personal efforts of several key lawyers and civil servants including Alan Shatter T.D. a member of the Irish parliament are to thank for the modern family law legislation in the Irish jurisdiction.
Section 5(1) of the 1996 Act sets out when and pursuant to what conditions the courts can grant a divorce in Ireland;-
“5.—(1) Subject to the provisions of this Act, where, on application to it in that behalf by either of the spouses concerned, the court is satisfied that—
( a ) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
( b ) there is no reasonable prospect of a reconciliation between the spouses, and
( c ) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family,
the court may, in exercise of the jurisdiction conferred by Article 41.3.2° of the Constitution, grant a decree of divorce in respect of the marriage concerned.
(2) Upon the grant of a decree of divorce, the court may, where appropriate, give such directions under section 11 of the Act of 1964 as it considers proper regarding the welfare (within the meaning of that Act), custody of, or right of access to, any dependent member of the family concerned who is an infant (within the meaning of that Act) as if an application had been made to it in that behalf under that section. ”
Accordingly, you can only divorce in Ireland if you are living separate and apart for periods totaling four out of the last five years. The Act referred to at section 5(2) above is the Guardianship of Infants Act.
That allows for the fact that many couples get back together for a while before separating on a permanent basis.
In Ireland the Court with ordinary jurisdiction to deal with Divorce applications is the Circuit Court. The High Court also has jurisdiction to hear Divorce applications, however, this is generally for cases of high value where the assets are worth in excess of several million Euro.
The High Court also deals with cases on appeal from the Circuit Court. Legal fees for the High Court tend to be alot higher than in the Circuit Court.
