FLAC Legal Divorce v2 band_layout 1 26/06/ :01 Page 1 July 2014 divorce

Transcription

1 Juy 2014 divorce

2 Divorce has been avaiabe in the Repubic of Ireand since Once a divorce is obtained, the parties (the ex-spouses) are free to remarry or enter into a civi partnership. Famiy Law (Divorce) Act 1996 Parties remain joint guardians of their minor chidren (under 18 years of age). Divorces are usuay sought in the Circuit Court (caed Circuit Famiy Court when deaing with Famiy Law Cases); however, if the parties are very weathy they usuay appy to the High Court. What do I have to do to get a divorce? Divorce is a no-faut system. In other words, there doesn t have to be any misconduct on the part of one of the spouses in order for a divorce to be granted. However, you must meet certain conditions to obtain a divorce. 1. When divorce proceedings begin, the spouses must have ived apart for at east four of the previous five years. 2. There must be no reasonabe prospect of reconciiation between the parties. 3. There must be proper provision for spouses and dependent famiy members. 4. Any other conditions that the court deems necessary or appropriate. 2

3 Once these conditions have been met, either spouse may appy to court for a decree of divorce. Once the court is satisfied that these conditions are fufied, a decree wi be granted thereby dissoving the marriage. Divorce proceedings can be either contested or uncontested, which means both spouses can agree to the divorce or one may object. Both spouses may agree what reiefs shoud be sought, which can be more cost-effective and may speed up the divorce process. On the other hand, they may have a difficut time agreeing how assets shoud be divided, what eve of financia support shoud be agreed and with whom the chidren wi reside. When the court grants a decree of divorce, it can aso make a number of anciary or additiona orders in reation to custody of chidren and access to them, the payment of maintenance and ump sums, the transfer or sae of the property, the extinguishment of succession rights, pension rights and other matters. What effect does a Decree of Divorce have? When a Decree of Divorce is obtained, the marriage is dissoved and the parties are no onger spouses, so they are free to remarry or enter into a civi partnership. 3

4 Ex-spouses ose their inheritance rights in reation to each other. Succession Act 1965 Some rights bestowed by marriage wi survive the divorce. For exampe, parties are seen as spouses for the purposes of the Domestic Vioence Act 1996, both remain guardians of their chidren, and former spouses are not deprived of a widow s/ widower s state pension. Divorce can ater the rights of a former spouse to the famiy home. A person may aso have responsibiities to maintain (financiay support) a former or ex-spouse even after divorce, unti the dependent ex-spouse remarries. Any chidren aged under 18 (up to 23 if in fu-time education) are aso eigibe for maintenance support. You shoud seek specific advice on this issue. (See aso FLAC s eafet on Maintenance) Famiy Home Protection Act 1976 as amended by the Famiy Law Act 1995 How do I go about getting a divorce? The first step when seeking a divorce is to consut a soicitor. You can bring divorce proceedings on your own, but the egisation may be difficut to understand without a soicitor s hep. If you cannot afford a 4

5 soicitor, you shoud appy for civi ega aid from the Lega Aid Board (see beow). It is possibe to issue one s own divorce proceedings without ega assistance and the officias at the Circuit Famiy Court offices can provide assistance to ay itigants. What documents wi I need to bring to my soicitor? State marriage certificate Any previous court orders Any deed of separation or earier agreement Detais of any chidren of the marriage, incuding any specia needs A financia profie of husband and wife, to incude: Empoyment status and income Mortgages, debts and other iabiities such as bank oans, overdrafts etc Properties hed either jointy or separatey Current maintenance and/or access arrangements (if any) A ist of a other assets incuding cars, savings accounts, shares etc Detais of Pensions/Insurance Poicies Accounts and recent paysip and recent P60 form 5

6 Receipts and expenses, to incude weeky outgoings such as food shop and bis etc What if my spouse and I need hep to negotiate the divorce terms? The aw requires a soicitor to inform the coupe of the possibiities of reconciiation, mediation and separation agreements and the option of judicia separation (See Separation eafet for more information on this). Mediation Famiy Mediation is a process in which an impartia third person (the mediator) assists those invoved in famiy breakdown to reach agreement regarding their chidren, finances and property. Famiy Law (Divorce) Act 1996 Mediation is particuary usefu where the parties have agreed to separate or divorce or where they have any issues reating to maintenance, custody, access or guardianship. The courts favour mediation and judges wi adjourn cases in some instances and suggest mediation before proceeding with the case in court. The mediator shoud be accredited and professionay trained his/ her job is to manage negotiations in an impartia way. Generay speaking mediation takes pace over 3 to 6 sessions. The parties shoud obtain their 6

7 own separate ega advice throughout the mediation process. When agreement is reached, the mediator wi draw up a written document usuay referred to as a memorandum of understanding that sets out what the parties have agreed. The parties wi each be advised by the mediator to get independent ega advice and the mediated agreement can then form the basis of the Deed of Separation or Decree of Judicia Separation/Divorce on consent terms. Note: A mediated agreement of under standing is not a ega agreement unti it is forma ised by a Court Order. The Famiy Mediation Service is a state-run, non-means tested and free service forming part of the Lega Aid Board. There can be a waiting time of a number of weeks/ months. Each party must contact the mediation service separatey to book themseves in. There are currenty 16 offices ocated around Ireand, some part-time and some fu-time. For more information, check the website at Apart from the Famiy Mediation Service you can avai of mediation on a private basis where you pay by the hour. Some soicitors and barristers have quaified as mediators and there inks on both the Law Society and Law 7

8 Library websites. However, mediators do not have to be awyers and there are a number of mediation bodies. Northside Community Law Centre (NCLC) Te: Web: and Baymun Community Law Centre (BCLC) Te: Web: both provide a free famiy mediation service. Coaborative Law This is an aternative method of resoution of famiy aw disputes incuding separation and divorce. The process takes pace outside a court setting. You and your partner work with your own speciay trained coaborative awyers and try to resove the various issues through face-toface meetings. Once issues are agreed the awyers can draft a binding agreement. If the process breaks down neither of the awyers can act for you in any contested court proceedings. The Lega Aid Board has pubished an information eafet on Coaborative Practice which can be downoaded from their website. What is the difference between Mediation and Coaborative Law? There are a number of differences but the main one is that in Coaborative Law your 8

9 awyer is at your side at a times during the process and if the process has been successfu you have a egay binding agreement. In mediation the agreement reached between the parties is not egay binding. When the mediation has concuded the parties are advised by the mediator to go to their soicitors with the mediated agreement for ega advice. Mediation can be the first step to attaining a Lega Separation or Divorce. Court procedure A divorces must be granted by a court, whether they are on consent (when both parties agree) or where they are contested. If the parties are unabe to resove the issues between them, they can turn to the courts for a determination of the terms of their divorce. The person who makes the appication for a divorce is known as the appicant in court documents. Their spouse is known as the respondent, who is the person who must repy through the court to the divorce appication. When the Court grants a Decree of Divorce, it can make various anciary orders in reation to various financia and property matters, incuding Orders reating to the famiy home, maintenance and pensions. When deciding to make any such Orders, the Court is obiged to try to ensure that proper provision is made for each spouse and for any dependent member of the famiy. In deciding 9

10 whether to make any such Orders, the Court wi take into consideration the various factors set out in Section 20 of the Famiy Law (Divorce) Act 1996, which incude the foowing: The income and capacity, property and other financia resources of the spouses; The financia needs, obigations and responsibiities of each of the spouses; The standard of iving enjoyed by the famiy concerned before the proceedings were instituted or before the spouses separated; The age of each of the spouses and the ength of time during which the spouses ived together; Any physica or menta disabiity of either of the spouses; The contribution which each of the spouses has made or is ikey in the foreseeabe future to make to the wefare of the famiy (incuding financia and nonfinancia contributions); Any income or benefits to which either of the spouses is entited; The conduct of each of the spouses, if that conduct is such that in the opinion of the Court, it woud in a circumstances of the case be unjust to disregard it (misconduct is ony taken into consideration by the Court if the misconduct is considered to be 10

11 gross and obvious; in other words, the misconduct has to be of an extremey serious nature); The accommodation needs of either of the spouses; The vaue to each of the spouses of any benefit which by reason of the Decree of Judicia Separation that spouse wi forfeit (such as a benefit under a pension scheme); The rights of any person other than the spouses. The courts sha aso have regard to the terms of any separation agreement which has been entered into by the spouses and is sti in force. What documents do I need to prepare for divorce? To appy for a divorce in Ireand, four documents must be prepared and submitted to the office of the Circuit Famiy Court: 1. A Famiy Law Civi Bi. This document sets out detais reating to you and your spouse, when and where you were married, what each of you do for a iving, where each of you ive, how ong you have ived apart and the names and birthdates of your chidren (if any). 11

12 2. A sworn Affidavit of Means which is a document that ists your assets, income, debts and/ or iabiities, monthy outgoings and pension entitements. 3. A sworn Affidavit of Wefare if there are any dependent chidren. This document sets out detais of the chidren such as dates of birth, where and with whom they ive, detais regarding their education, heath, chidcare arrangements and any maintenance and access arrangements aready in pace. 4. A document that certifies you have been advised of the aternatives to divorce. This is signed by a soicitor, and certifies that you have discussed the possibiities of reconciiation, mediation and separation. Copies of the reevant forms are avaiabe from your nearest Circuit Court Office. Some of these forms are aso avaiabe on the Courts Service website: under Court Forms> Schedue to the Circuit Court Rues > Schedue B Forms. The court rues that govern famiy aw proceedings can aso be viewed on the Courts Service website under: Court Rues > Circuit Court Rues > Index of Rues > Order

13 What does the respondent need to do? When the respondent is served with a Famiy Law Civi Bi, he/she shoud odge an Appearance. This is a document that indicates to the Appicant and the Court that the respondent has been served with the proceedings. The respondent is then aowed some time to fie (register papers with the court) his or her Defence and Countercaim, Affidavit of Means and Affidavit of Wefare. What happens after a the documents have been fied? Once a documents are fied by the appicant and respondent, the County Registrar (a court officia with powers simiar but much more imited to those of a Judge) wi convene a meeting (or meetings) with the peope invoved and their awyers, if they choose to be represented. These meetings are caed case progression hearings, and they happen in a court room though with much ess formaity than a court hearing. At these hearings the County Registrar wi make sure that both sides identify the issues in dispute and are prepared for hearing. The County Registrar can aso set a timetabe within which preparations must be competed so that the case is run fairy and efficienty. 13

14 What happens at the hearing? Once the case is ready for hearing, it wi be isted before a judge who wi hear both sides and ensure that the requirements of the Famiy Law (Divorce) Act 1996 have been met. If both parties agree at any time during this process to sette the case and reach agree - ment on the terms of their divorce, it can be very quicky brought before a judge who must be satisfied with the settement agreed. When a Decree of Divorce is granted, Anciary Orders can be made by the Judge on issues such as: Maintenance Access to and custody of chidren Property adjustments Sae of property Extinguishing of succession rights Pensions Life Cover 14

15 Interim Orders It may be quite some time (sometimes up to a year or onger) before a case comes up for hearing before a judge. In the meantime, and if matters are deemed urgent, either spouse is entited to appy for Interim Orders which wi remain in pace unti the fu hearing. These orders can decide such matters as: The amount of maintenance (if any) to be paid pending a fu hearing of the case; The custody and access arrangements of the chidren pending the fu hearing of the case; Safety/Protection/Barring Orders pending the fu hearing of the case; Freezing an asset, such as a ump sum termination payment from an empoyer. 15

16 Foreign Divorces Brusses II bis EU divorce: Reguation A divorce obtained in any European Union country (except Denmark) wi generay be automaticay recognised and enforced in Ireand under the Brusses II bis Reguation without any specia procedures. Non-EU divorce: A divorce granted by a non-eu court (and a Danish court) wi ony be recognised in Ireand where either of two conditions is satisfied: Domicie & Recognition of Foreign Divorces Act 1986, section 5 One of the spouses must be domicied in that court s jurisdiction at the time divorce proceedings are issued. It is not necessary for the spouse who initiated the proceedings to be domicied in that jurisdiction, as ong as the other one is. If the spouses obtain a divorce in a different country from where they are domicied, but their domiciiary country (where they are iving) recognises that divorce, Ireand wi recognise it on this basis. Exceptions to recognition of non-eu divorces are: divorces obtained by fraud; divorces obtained under duress; 16

17 divorces obtained under any non-judicia process; or divorces obtained with some other denia of justice, to be adjudicated on by the Irish courts. You shoud note that each state in the United States and each territory in Austraia is treated as a separate jurisdiction for the purposes of recognising a foreign divorce. What do I do if I have questions about a foreign divorce? If you are in doubt, you can appy to the Circuit or High Court to seek a decaration as to the vaidity or non-vaidity of a non- EU foreign divorce. The Revenue Commissioners can aso make such an appication because it is often reevant when it comes to the question of inheritance tax. Famiy Law Act 1995, section 29 It must be stressed that Irish aw is not concerned about the foreign aws under which a marriage was formed or a divorce granted in deciding whether to recognise a foreign divorce. The courts here wi ony ook at the issue of domicie. 17

18 Domicie What does domicie mean and why is it important? The concept of domicie is quite compicated egay as it does not just mean being habituay resident or just iving in a country. Domicie is in arge part about your intention to remain in a country permanenty as opposed to the actua ength of time you spend there. At birth, you automaticay get a domicie of origin which is usuay in your birth country, even if you may not get citizenship of that country at birth. However, if you move to a different country, even if you ive there for many years, you wi sti retain your origina domicie uness you can prove you intend to remain in the new country permanenty. 18

19 Exampe: After getting married in Paris, James and Marie moved to Austraia ten years ago to find work. They found jobs, set up home and had two chidren there and were happy for many years, athough they aways taked about going home to set up a business. However, three years ago, their reationship broke down and they divorced. James returned to Ireand the foowing year and recenty met a new person whom he wishes to marry. However, when he presented his papers to the Registrar of Marriages, he was shocked to discover that Irish aw did not recognise his foreign divorce. Because he never had the intention of permanenty remaining in Austraia, he had never ost his Irish domicie of origin and therefore coud not fufi the conditions for recognition. He had to then appy for a divorce under Irish aw, which meant he had to wait for another year to meet the four-year requirement. The in camera rue A cases in the Famiy Law Courts in Ireand are heard in camera (in private). Therefore, members of the genera pubic are not permitted to enter the court. The in-camera rue has changed recenty to aow the media to have imited access to famiy aw hearings and to have imited rights to report on the proceedings. 19

20 Lega Aid You may be eigibe for ega aid if you are a person of moderate means. To quaify for ega aid in civi cases your disposabe income and assets must be beow a certain imit, there must be merit to the case and there must be no other satisfactory way of resoving the probem. After approva, the Lega Aid Board provides you with the services of a soicitor and, if necessary, a barrister. You can appy for ega aid for more than one matter at a time. The Board s offices are caed Law Centres and are ocated around the country. For the ocation of your nearest Law Centre, ca A those who are granted ega advice and/or ega aid must pay a fee caed a contribution to the Board. The minimum contribution is 30 for ega advice and 130 for ega aid. Law centre staff wi advise what a person s actua contribution wi be as each person is assessed on an individua basis. Before you quaify for ega aid, you must first satisfy a means test. Your disposabe income must be ess than 18,000 and your disposabe capita cannot be more than 100,000. If you are in receipt of aowances, they wi be taken into account and they are deductibe when cacuating disposabe income. The maximum aowance on chidcare faciities if you are working is 6,000 per chid per year and the maximum aowance on accom moda - tion costs (e.g. rent) is 8,000 per year. The 20

21 Pubic Service Pension Reated Levy and the Universa Socia Charge are now aso con sider - ed and are deductibe for the purposes of assessment. The vaue of an appicant s home and its norma contents are excuded when assessing the vaue of his/her capita resources (property). If your capita resources exceed 4,000, you must compete a Statement of Capita. For further detais on financia eigibiity requirements or for detais of other aowances, contact your oca Law Centre. A fu ist is avaiabe at FLAC has prepared a guide to the state ega aid system which you can downoad at bit.y/clafacsheet. Need more information? Lega information eafets are aso avaiabe from FLAC on a variety of other areas of aw. They are free to downoad as PDFs from the FLAC website or in print from your oca FLAC centre or Citizens Information Centre. 21

22 Notes 22

23 Notes 23

24 FLAC Mission Statement FLAC (Free Lega Advice Centres) is a human rights organisation which exists to promote equa access to justice for a. Whie every effort has been made to ensure the accuracy of this eafet, it is provided for genera ega information ony and is not intended as a substitute for ega advice. The information it contains is correct as of date of pubication. FLAC does not accept any ega iabiity for the contents of this eafet. Peope with specific ega probems shoud consut a soicitor. FLAC is very gratefu to Eugene Davy, soicitor who finaised this eafet and to Jennifer White BL and Hannah-Sioux Day who heped with earier drafts. FLAC offers free, confidentia basic ega information via its o-ca teephone information ine at and one-to-one ega advice through its network of vountary advice centres countrywide FLAC Free Lega Advice Centres, Juy 2014 LoCa: fb.me/facireand Designed and printed by Printwe Design This pubication was supported and part-funded by the Citizens Information Board