Navigating a divorce can be a minefield. Not only are you catapulted into the devastating breakdown of your marriage, you are also flung into a complex area of the law.
The Courts – Step 1
At the outset it is important to note that, in Ireland, a marriage can only be ended by a Court and any divorce agreement has to be approved by a Court.
As discussed in previous articles, the law sets out a number of prerequisites for couples who wish to divorce:
- You and your spouse must be “living apart” for at least two years during the previous three years. Living apart can include people living separately in the same house.
- There must be no prospect of reconciliation.
- There must be proper provision for each spouse and any dependent children. Proper provision is the cornerstone of the law in Ireland and even if both spouses agree, the Judge must examine and satisfy themselves that proper provision is being made for both spouses. (see article on proper provision)
These prerequisites are enshrined in the Constitution and are taken very seriously by the Judges of the Family Court.
The Courts – Step 2
As with all matters before the Courts, there are originating documents to be filed. The person bringing the matter before the Court is called the Applicant and their spouse is called the Respondent. These documents tend to be drafted by experienced family law barristers. The necessary documents are:
- Family Law Civil Bill: This is essentially your application form. The Civil Bill sets out the basic history of the relationship to include personal details, whether you have children, what property you own, your employment situation and what each person contributed to the marriage. It then sets out why the relationship has ended according to the Applicant. The second part then proceeds to the claim which sets out the “ancillary reliefs”. This is a very technical aspect of the process and tends to be drafted by a barrister. Typical reliefs include maintenance, the family home, other property and assets, custody, succession rights, personal safety and the safety of children, and pensions. It is important to note that if you don’t include certain provisions, then the Court does not have the power to make these orders.
- Affidavit of Means: This is a sworn document and sets out a list of your assets, your income, any debts or liabilities you have, your weekly spending and any pensions you have. It is very important that this document is prepared with the utmost care as you will have to support everything that’s on it with the necessary documentation such as bank statements, payslips, revenue documentation, etc. It is essential that you know exactly what is in your Affidavit as you may end up being cross-examined by a barrister on the contents. The Judges of the Circuit Court in Cork take particular notice of your Affidavit of Means and will look for an up-to-date Affidavit of Means to be filed within three months of a trial/ruling date.
- Affidavit of Welfare (if there are dependent children of the marriage). This document sets out the personal details of any dependent children of the marriage, their residence, health, maintenance, childcare arrangements, contact with children, education, and training. A “dependent child” is a child under 18 years or a young adult between 18 and 23 provided the young adult is in full time education.
- A document confirming that you have discussed alternative means of resolution. This is generally signed by your solicitor setting out that you have been advised about mediation. Mediation is discussed later in this article.
- Original Marriage Certificate.
Following completion of these documents, they are sent to the relevant Circuit Court office who will lodge the application and provide you with a unique reference number called a Record number. These documents are then returned to you and must be sent by you or your solicitor to your spouse or their solicitor.
The Courts – Step 3
In theory, your spouse has 10 days to file their Appearance once they have received the Civil Bill and within 10 days after that they must file their Defence and Affidavits. An Appearance is simply a document to state that they acknowledge the documents and will engage with the proceedings. The Defence is the document that rebuts the allegations made in the Civil Bill.
I am aware that this all sounds like an extremely speedy process and you might be wondering why you would hear people complain about the lengthy divorce process. In reality, these initial steps can take a number of months. The Court will always allow further time to a Respondent in order to file their Defence papers. This is due to the volume of work that requires to be done to prepare the documentation.
Sidenote – Mediation
Mediation is a positive place for some couples to start the divorce process. Solicitors in Ireland in fact have a legal obligation to inform you about the possibility of mediating your divorce. Mediation is a voluntary process meaning both spouses must want to attend. Mediation is not suitable in circumstances where there is allegation of domestic violence, coercive control or a large differential in the spouse’s net worth. A mediator can help you reach an agreement about issues with money, property, or children. A mediator cannot offer legal advice and so it is always advised to seek the support of a solicitor throughout the process.
It is also important to note that even if you do reach a successful outcome in mediation and your agreement is reduced to writing, this agreement is not a binding agreement. Divorce proceedings must still be issued to obtain your actual divorce and formal Court orders. The originating documentation to include the Respondent’s Appearance and Affidavit will have to come before the Court. An application can then be made to bring the matter before the Court at an earlier stage, based on the mediated agreement. The Court will scrutinise this agreement to ensure that proper provision has been made for both parties and if the Court finds it in order, will then make the appropriate orders.
Mediation or settlement can be discussed at any stage of the divorce process and specialist family law solicitors and barristers in fact encourage early settlement where it appears possible and every effort is made to secure agreement.
A particular bugbear which is often a perceived as a “delaying tactic” by some is that sometimes a Respondent may not engage with the process and the only way to bring the claim forwards is for the Applicant, after a required period of time has passed, to bring a Notice of Motion in default of Appearance or Defence. This means that the documentation can be brought before a Judge without the presence of the Respondent in circumstances where they have not responded to any of the originating documents. Generally speaking, the Court will allow a further four/six/eight weeks for the Respondent to provide the documentation. On expiration of that time if you still do not have a proper response from the Respondent, you would then issue a second Notice of Motion in default and at that stage you would ask that the matter would be transferred into the Judge’s list for ruling. You would then be given a hearing date. Again, generally speaking, some further time would be allowed to the Respondent. While this may seem like a frustrating and drawn-out process, it is the only way to ensure that both sides are given ample opportunity and justice is correctly done.
The Courts – Step 4
Returning to the main process, within 28 days of the Defence being filed, both sides should exchange the documentation which substantiates their Affidavit of Means. This is known as the discovery stage. Depending on the extent of the assets and incomes, this can be quite an extensive amount of documentation and care is always advised in the production and examination of this documentation. Depending on the extent of the assets and incomes, the services of experts such as auctioneers, accountants and farm assessors etc may be required.
The Courts – Step 5
The next important stage of the process is a Court date called Case Progression. It is at this stage that the matter can be “called on” meaning it is ready to be placed in a trial list or “adjourned” meaning there are some disclosure issues remaining between the parties. At the moment in the Cork Circuit Court once a matter is called on, there is approximately a 6 month – one year wait for a trial date.
This tends to be a good starting point for an attempt at settling your divorce. You should be in a position where both sides know the financial position of each spouse. Your legal team will always encourage you to engage in negotiations in a constructive attempt to settle matters. It is important for your family and your life going forwards. It is always important to have a say in your family affairs and in how the rest of your life will pan out as opposed to a Judge making these decisions for you.
The Courts – Step 6
If an agreement can be reached, then it will be reduced to writing and brought before the Court to a ruling date and the Court will make Orders based on your agreement subject to the agreement meeting all of the requirements of Step 1(above). An early agreement will also likely reduce your legal fees.
Where agreement cannot be reached, a full trial is held. Generally speaking, the Family Law Court will expect the parties and your legal team to have attempted to reach a compromise and to have narrowed the outstanding issues between them. Therefore, the Court tends to allow approximately two hours for a full hearing. The hearing is held “in camera” which means it is held in private. The Applicant is sworn in and gives evidence and is then cross-examined by the barrister for the Respondent and in turn, the Respondent gives evidence and is cross-examined. While the Family Law Court is less formal, there is no avoiding the fact that giving evidence and being cross-examined about the most private aspects of your life is a very difficult experience. Ultimately, the Judge will decide and divide the matrimonial property on the basis of making proper provision for both parties now and into the future if possible.
The Courts – Step 7
Finally, after the ruling date or the hearing date, the Decree of Divorce or Judicial Separation is issued and the various orders for lump sum payments, division of property, payment of maintenance, and pension adjustment orders are made. These orders are completed over the next few months and brought into effect.
Divorce can clearly be a very long and difficult journey and one that you need to be prepared for. It can be argued that divorce is 30% law and 70% very intense emotional distress – a full blown bereavement! In undertaking this challenging journey and safely reaching the other side, you deserve the support and expertise of a specialist solicitor, a professional counsellor and the love and support of family and friends. Wolfe & Co LLP have years of experience and are well-equipped to help you through each step of the way.
By Aislinn Collins Solicitor
This article is for general information purposes/general overview only and does not constitute legal or other professional advice. We recommend seeking legal advice to interpret and advise on any aspect of the law.
July 2023 Wolfe & Co. LLP Solicitors
Market Street, Skibbereen, Co. Cork – web: www.wolfe.ie
Tel: 028-21177, e-mail: email@example.com