Divorce

So What is Divorce? When can I apply for one?…Read More

Legal Advice

Do I need a lawyer? Can I do my own Divorce?…Read More

Mediation

What is Mediation? Are divorcing couples going to mediation first?…

Families

How do we protect ourselves and our family in Divorce.

Planning is King The key to completing a successful Divorce is based in two key components. “Organisation” and “Proper Provision”. Parties going through a Divorce/Separation need to ensure that they have organised all their affairs in a clear and transparent manner. They also need to ensure that proper provision is made for their children and for themselves as well…Read More

What to Organise Our Property Our Incomes Our Debts Our Pensions Childcare Arrangements The Children’s Education Our Tax Status Christmas Holidays Passports and Travel Grandparents New Relationships/Partners Personal Items / Furniture Amongst Other Issues..

Working for Families Going through a separation or a divorce can be an especially difficult time. It can be all the more difficult if you are not organised in preparing your paperwork for formailisng your separation / divorce. This is coupled with the fact that you need to look after youself during this transition. You must look after your stress levels, diet and personal circumstances…Read More

]]> http://www.divorceinireland.net/overview/overview/feed/ 0 http://www.divorceinireland.net/family-mediation/family-mediation/ http://www.divorceinireland.net/family-mediation/family-mediation/#comments Mon, 25 Oct 2010 13:25:49 +0000 admin http://www.divorceinireland.net/?p=54 Family Mediation is the most cost effective way to sort out the terms of your Divorce.

People agree the terms of their divorce before hand at mediation to save on the legal costs associated with contested court proceedings.

Mediation can be completed at private client family mediation service providers or at the state based family mediation service. There are two types of mediations in Ireland. Sole Mediation and Comediation. Sole mediation is where one mediator works with the parties going through a divorce, legal separation or a family dispute. Comediation is where two or more mediators work with a couple going through the process.

On average mediations have a very high success rate. Globally almost eight out of every ten cases reach a compromise or settle. In resolving matters at through mediators couples can then proceed to court and process their divorce on consent.

Because the divorce is unconsent this means that couples can leap-frog the contested court list and have their application processed more quickly.

In Ireland various institutions train and accredit mediators such as The Mediators Institute of Ireland, Friarylaw, Roundtable and Mediation Forum Ireland. Under legislation The Law Society of Ireland and The Bar Council of Ireland are also entitled to appoint chairpersons to mediate a dispute.

To locate an appropriate practitioner type “family mediation” into Google, Yahoo or one of the main search engines to locate practitioners in your locality.

Many people ask about the similarities between the process and collaborative law. Both are members of the ADR or Appropriate Dispute Resolution family.

In collaborative law the lawyers remain part of the direct negotioations/facilitation. In mediation the mediators remain outside of any advisory capacity and do not give any legal advice. They act as facilitators to help you reach a solution to your own problems.

The practice of ADR is in a very advanced state in jurisdictions such as Australia, Canada, New Zealand and the United States. Other countries such as the United Kingdom have struggled to fully integrate practice into the legal system.

Ireland by comparison has some catching up to do when compared against other world-wide jursidictions.

CARI (Children at Risk in Ireland) 1890 201890

Console 1800 201890

Child Line 1800 666666

Suicide helpline 01 6010000

Teen Help 014543374

Male Victims of Domestic Violence (AMEN) 046 9023718

Rape Crisis Centre 1850 355355

Womens Aid 1800 341900

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.

In an attempt to relieve backlogs in the court lists and improve progress in family law cases, the courts services introduced a new step in family law cases called case progression. Both sides are brough before the County Registrar who checks to see if all the appropriate forms are filled out and information exchanged for the case to go to hearing. If one side is slowing the case down or dragging their heels the County Registrar has powers to make orders against the party who is delaying. This process was first tried out in a pilot scheme in 2007. It worked very well and was implemented everywhere nationwide for all new cases commenced after 1 October 2009. This new process will bring positive changes to applications for divorce in Ireland.

I did not want this divorce.

You can request from the outset that your spouse go to marriage counselling. However, if they are not willing to go and they are living separate from you for a period totalling or in excess of four years there is a very strong possibility that they will be granted a divorce.

I am worried my spouse will leave me with nothing.

Common urban myth. The courts duty is to provide proper provision for both spouses and any dependants. Invariably one side will not “get everything” or “clean the other side out” as many urban legends dictate. The court will have to make sure however that provision is made for any children or dependants such as children with disabilities whether they are young or adult. The severity of any disability or handicap will be an obvious source of concern for the court.

A dependant is any child under 18 years of age or any child in full time education up and until 23 years of age.

Does this mean that if my kids go to college I have to pay for them up and until they are 23?

Yes. If they stay in college or third level education until that age.

I am worried about being forced to pay my spouses legal costs.

At this point in time the courts generally do not order one side or the other to pay the other side’s costs for a divorce application. Although the court can order one side to pay the other side’s costs this does not happen in the vast majority of cases with divorce in Ireland.

The stress of all of this is just too much for me.

Separation and divorce is a very stressful event in anyones life. It can even be more stressful than the bereavement of a loved one. Accordingly, it is prudent to first seek the advice of your GP or family doctor in terms of strategies and treatments to deal with that stress. If something in the house needs fixing we call a repair worker. Yet when it comes to our own emotional and psychological well being people seldom seek the advice of medical professionals. I would reccomend watching your diet, excercise levels and health in general during a divorce. Take up sports or yoga with the advice of your GP. Mind your health. People in the States I find are more aware of this than when it comes to people going through a divorce in Ireland.

Can the court order me to sell my property?

Yes, amongst other assets where appropriate. In an application for a divorce in Ireland the courts can divide up pensions, order the payment of monies from one spouse to the other in various formats. The court can even transfer portions of a pension or pension benefits to the other spouse as it sees fit. However, it does not do so lightly and will only distribute assets where required to make proper provision for the parties and children involved.

I obtained a divorce this week and I am not happy with the courts decision.

Under the law there is a very strict time limit within which parties can appeal a court decision or court order. Seek immediate legal advice. Bear in mind that the courts are more inclined on appeal to make an order for costs against one spouse or the other depending on the outcome of that appeal. An appeal must be lodged wiithin 14 days of the order of the Circuit Court.

The court will need to hear evidence proving that there are two clear and separate households living under the same roof. For example if the parties were not sleeping in the same bed but were sharing dinners and household chores the court might be of a view that they are still
married.

So what does this mean?

It means you have to be very sure that you are living separate and apart from your partner for four out of the last five years before appying for a divorce.

My spouses is violent or cheating on me. Can I not get a divorce for this?

No. Only if you are separate and apart from your spouse for four out of the last five years. However, violence and adultery can be taken into account by a court in terms of how the assets are divided if it is “gross and obvious” in nature. These are also factors of concern to a court in an application for a Judicial Separation in Ireland.

If you are a victim of Domestic Violence consult with the police and your local law enforcement agents immediately before taking any further steps.

Do I need a solicitor?

Under the law there is no obligation on either party to have a solicitor when seeking a divorce in Ireland. However, in cases where divorce is contested or there are issues over assets, or arrangements concerning the children then it is advisable to seek legal advice before bringing an application.

Remember, even if you have decided you do not want to retain a solicitor to complete your divorce you can at the very least get a consultation with a Solicitor to get all the basic legal advice before you decide to go your own way. Depending on where you reisde many solicitors offices charge between 50 and 100 euros for an initial consultation. Some specialist firms may even charge more.

Ho do I know if my solicitor works in family law.

Phone them and ask them. If they do not they might reccomend a colleague/colleagues. You can also ask your solicitor if they are trained as a collaborative lawyer and a mediator. This can be a good indicator as to how much family law work is completed by the solicitor in question.

Surely I dont need a barrister aswell?

It depends on the type of case and the circumstances. If there are complicated issues regarding property, access, pensions or maintenance, retaining a barrister might be advisable. Your solicitor will advise you on the facts of your case. In cases where there are complex issues even the most experienced of family law solicitors will bring an experienced barrister on board. This will give you an indication as to how technical the area can get. Many leading barristers are also trained as mediators.

But we do not have any assets or any issues over the kids.

Good. Then your divorce should not cost you as much as a contested divorce. Also it can be completed relatively quickly.

Can’t I just get a DIY Divorce so?

You can. Its a free country and you folks have a democracy in Ireland too. Remember if your Divorce goes wrong and doesnt work out you probably will have very little options in terms of recovering damages. With a DIY divorce you are responsible yourself and if it goes wrong the consequences rest with you alone. If you have kids, a house and a pension thats alot of responsibility.

How quickly can I get a divorce in Ireland?

If you live in Dublin the courts sit every week. Accordingly, people living in the Dublin catchment area can get a consent Divorce, where there are no issues, within two to three months from launching the proceedings.

In the rest of the country most circuits have family courts sitting about four times a year. Accordingly, to get  a consent divorce in other parts of the country you sometimes have to wait three months or longer depending on when you apply. I have come accross consent matters that
have taken five months to rule as the application was lodged before the August court vacation.

How much will it cost me to get a Divorce?

It depends on the type of case and how much work is involved. If it is on consent and you retain solicitors it could cost you several thousand euro.

If it is a contested case and numerous matters are in dispute fees could start at five thousand euro and head into tens of thousands depending on how much work is completed and the value of the assets amongst other factors. Your solicitor will set out the basis they charge in a section 68 letter. As your case progresses they will be in a better position to give you firm estimates in terms of fees.

In the High Court some cases have gone on for days and fees have run to several hundred thousand euro.

What is the cheapest way to Divorce?

If you have issues to sort out with your partner go to mediation and reach a mediated agreement. Then both parties go to their respective lawyers and that agreement can be made legal and ruled in court on consent. Circumstances vary from cases to case. If you want the best way to get your divorce with the least amount of acrimony and covering all your legal bases, thats my best suggestion for value. That applies as a rule of thumb for any former colonialjurisdiction or empire in the world.

Also on average collaborative law is proving more cost effective than fighting contested divorce cases in court.

Going to court with lawyers costs money. However, depending on your circumstances it will probably be money well spent.

ADR means alternative dispute resolution. The ADR process provides means of resolving disputes through means other than acrimonius
and costly court proceedings. If you are applying for a divorce in Ireland, ADR can provide a cheap alternative to contested divorce applications. Mediation and collaborative law are both forms of ADR. Mediation and Collaborative law are not suited to cases where there is domestic violence.

How Does Mediation Work?

When it comes to family mediation Ireland has both public and private services on offer. Mediation is generally completed over four to five sessions. mediators do not act as judges or give legal advice. They are totally impartial. Parties to a mediation can tell the mediator matters they want to keep secret from the other side. Many mediators will not allow sessions to go much beyond and hour to an hour thirty minutes. The format the mediation sessions take depends on the mediator. Some mediators will have initial sessions with each party separately before commencing the mediation. Then the mediation sessions can proceed with the parties together in the same room or in separate rooms.The objective over the five sessions is to reach a Memorandun of Understanding. It is not legally binding however, the parties can take legal advice from a solicitor before sigining any mediation agreement. As part of the mediation process parties will have to declare their financial circumstances to eachother through the mediation process. Different sessions will deal with different topics such as arrangements for the children, financial matters, the family home/living arrangements and pensions.

Is a memorandum of understanding legally binding when we sign it?

No. However, the separate “Financial Summary” can be used in evidence against you if you fail to properly disclose your financial circumstances. The “memorandum of understanding” is not a contract.

Who mediates?

You can go to the state based Family Mediation Service. This is a public based service and is provided for free. However, they usually have large waiting lists depending on where you reside. You could also retain a private client family mediation service. This may cost money but on average will work out vastly cheaper than a contested court case and you generally have no waiting lists. It allows the parties to control their own costs. Private mediators generally charge an hourly rate. Many barristers and solicitors are also trained as mediators.

Also Collaborative Lawyers charge an hourly rate and have shorter waiting lists than the public mediation service.

How does Collaborative Law Work?

Collaborative law involves both parties and their lawyers sitting around a table to sort out their personal affairs on a Separation or Divorce. Collaborative law can also be used to resolve other types of dispute. The parties sign an agreement with their lawyers from the outset of the process. If the parties cannot reach an agreement in collaborative law then they must either instruct new lawyers or go to mediation. They cannot use their present lawyer to go to court over that family law dispute if the collaborative law process does not work out. Applications
for divorce in Ireland will change in nature over the next ten years with the advent of collaborative law in Ireland.

The beauty of the collaborative law process is that third party professionals can be drafted into the process such as divorce coaches and child care experts. Also the parties can retain joint accountants and financial experts rather than retaining two separate professionals at extra cost. Joint real estate agents can also be retained. The possibilites are limitless.

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.