Divorce in Ireland is a very recent development. After a referendum on the subject in 1995, divorce was only made legal in Ireland in November 1996 through a constitutional amendment. The grounds for divorce in Ireland are quite strict, and so many couples choose ‘judicial separation’ as an alternative way of ending their marriage. So how does divorce work in relation Ireland? What’s the difference between judicial separation and divorce? And how are child custody and property dealt with on divorce? Keep reading for our guide to divorce and Ireland.
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Judicial separation or divorce?
The main ground for divorce in Ireland is that you have been separated for four out of the last five years. So, if you want to end your marriage but you haven’t been separated for four years you can instead apply for ‘judicial separation’.
There are three main differences between judicial separation and divorce:
- a divorce allows you to remarry while judicial separation does not
- arrangements made in a judicial separation can be changed later when a court is asked to grant a divorce
- there is no ‘fault’ element under a divorce, but you may have to show fault to obtain a decree of judicial separation.
There are six grounds for judicial separation:
- Unreasonable behaviour that makes it intolerable for you to live with your spouse. This is often physical or mental violence/abuse
- You consent to the separation and you have lived apart for a year or more
- Desertion for at least one year (this also includes ‘constructive desertion’ where you have left for more than a year because of the behaviour of your spouse)
- A ‘normal marital relationship’ has not existed for at least one year
- You have been separated for at least three years (no mutual consent required).
Note that you do not have to wait a year to apply for separation in the case of 1 and 2 above.
Divorce laws and grounds for divorce in Ireland
Before a court will grant a divorce, you must meet the following three conditions:
- You must have been living apart for four out of the last five years. You can continue to cohabit as long as you can prove you lead separate lives – you sleep apart, your finances are separate, and you do not share washing, cooking duties etc.
- There must be no reasonable prospect of reconciliation.
- You have made arrangements for any dependent relatives (typically children) and your spouse.
If you are in agreement regarding the terms of your divorce, then it is possible to obtain a divorce by consent. If not, there may need to be a contested court hearing so that orders can be made relating to the areas in which you don’t agree.
How child custody, contact and support are decided on divorce in Ireland
When you divorce, you can come to an agreement with the other parent about residence and contact arrangements for your child. You will be encouraged to agree and make arrangements for your child to spend time with both of you.
If you can’t agree, the court will make an order. Irish courts will typically assume ‘joint custody’. Here the primary care will be with be with the parent with whom the child lives. The non-resident parent will be awarded contact which can include overnight contact and time in school holidays.
Any order made by the court will be based on your child’s best interests. Your child has the right to see both parents and so contact with the non-resident parent will only be denied if the court does not believe this is in your child’s interest.
Your child’s views and wishes will be taken into account in the process.
In terms of child support, there are three ways this can be agreed:
- you can come to an agreement with the other parent
- you can use an intermediary (such as a mediator) to come to a written agreement
- you can apply for a court maintenance order.
Child maintenance can be provided for children under the age of 18, or under the age of 23 if your child is in full-time education. The amount of maintenance will be based on your child’s needs and the ability of the parents to pay.
Ireland is a signatory to both the Hague Convention on Child Abduction and the Brussels IIa regulations. This means that if your child is taken out of Ireland without your permission, or from another EU or Convention country to Ireland, you can apply to the appropriate authority for them to be returned to your ‘home’ country.
Financial settlements on divorce in Ireland
There are no fixed rules for the award of spousal maintenance or the division of assets in Ireland. Each case will be treated on its individual merits and the aim is to ensure that ‘proper provision’ is made for the spouse and any dependent children.
If you can’t agree on your financial arrangements either between yourselves or through mediation/negotiation, a court can be asked to make an order. Factors the court will consider include:
- your current incomes and future earning capacities
- your current and future financial needs
- your standard of living before the divorce
- the accommodation needs of each spouse
- your age and how long you were married
- the input of each of you has made to the welfare of your family
- how your marriage affected your ability to earn (if at all)
- the conduct of both of you.
Taking all these factors into consideration, a court may grant a maintenance order to support a financially dependent spouse. This could be a periodical payment or a lump sum payment.
The court will also decide how to split your assets, again ensuring ‘proper provision’ is made for the spouse and dependent children.
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