Since the introduction of the Family Law (Divorce) Act 1996, Ireland has operated a no-fault divorce system. This means that no element of fault needs to be proven in order to apply for a decree of divorce. In other words, the conduct of the parties is almost always irrelevant from the Court’s point of view. Conduct can be taken into consideration if it would be “unjust to disregard it” however this is a very high bar to reach and conduct is rarely referred to by the Court.
This no-fault system was and continues to be a very progressive stance to take in respect of divorce laws. Even our neighbours in the UK, who we regularly turn to in respect of legal matters and decisions, only introduced the option of a no-fault divorce in 2022.
Regardless of why a marriage ends, there is always emotional fallout. Clients going through the separation process come to us in a distressed state. They are feeling betrayed, heartbroken and lost. They are grieving the loss of their marriage without even realising that they are going through a grieving process. This upset tends to be greater, and there is more animosity, when one party believes (rightly or wrongly) that their spouse has wronged them in some way, leading to the breakdown of the marriage. Therefore, in many cases, the “wronged” party feels like they should be entitled to a more favourable financial settlement than the other.
While listening with an empathetic and understanding ear, we advise our clients the Court doesn’t look to apportion blame or penalise either party, save in very serious cases of domestic or child abuse. The Court is more concerned that proper provision is made for each party and any dependent children.
In Irish law, it is possible for a divorce to be granted in circumstances where one spouse is opposed to it, once the three requirements for a divorce are met. The three conditions are:
- The spouses must have been living apart for two out of the previous three years on the date the divorce application is made. Before the introduction of the Family Law Act 2019, this was four out of the previous five years. The Family Law Act 2019 also clarifies that ‘living apart’ includes couples who live in the same house but are not in an intimate and committed relationship. The Act also states that a relationship does not stop being an intimate relationship just because it is no longer sexual in nature.
- There must be no reasonable prospect of reconciliation.
- Proper provision must have been made for the spouses and any dependent children of the parties. (see here for an discussion of proper provision https://www.wolfe.ie/what-is-proper-provision/)
Many of our clients, on hearing of the no-fault system feel quite hard done by. They want somewhere to air their grievances and to lay blame for the marriage breakdown on the other. While these are understandable emotions to experience while going through a divorce, the breakdown of a marriage is difficult enough and proving that one party is at fault would invariably add to the acrimony. By removing the fault base, we take the focus away from blame and allow a couple to focus on making decisions about the arrangements for their children and how their finances should be dealt with. It also means that their children may be less likely to witness acrimony between their parents.
Importantly the no-fault divorce system allows parties to proceed on a less contentious basis and avoid the burden of having to prove that one party is responsible for the breakdown of the marriage. This burden could lead to a never-ending “he said, she said” situation which may never allow for a resolution. The no-fault system avoids parties being trapped in a marriage, it avoids parties having to engage in contested divorce proceedings where the Court has to determine who is responsible for the end of the marriage. Such Court cases would be costly both financially and in terms of the increased acrimony which would inevitably caused. It prevents one spouse from vindictively contesting a divorce forcing their spouse to remain in an unhappy marriage and it reduces the potential for domestic abusers to challenge a divorce thereby using the Court system to further harm their victims.
We always advise our clients to go to a therapist/counsellor to deal with the emotional aspect of the divorce while we navigate with them through the legal side.
Therefore, a divorce settlement, for very good reason, is not based on the conduct of either party. It is important to remember that whatever the reason for the marriage breaking down, it is best to focus on the future. The settlement can affect you for years, so it is important to get it right.
Wolfe & Co LLP are experienced in all aspects of family law and are here to assist you through this difficult time.
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.
May 2023 Wolfe & Co. LLP Solicitors
Market Street, Skibbereen, Co. Cork – web: www.wolfe.ie
Tel: 028-21177, e-mail: firstname.lastname@example.org