Hugh Condron - How to get a Divorce in Ireland? - Family Law centre
Until 1995, divorce was constitutionally banned in Ireland. The ban dated back to the 1937 Constitution, which reflected the strong influence of the Catholic Church on Irish society and law. In June 1986, a referendum to remove the constitutional ban on divorce was defeated. In November 1995, a second referendum narrowly passed (50.28% in favor), allowing for the introduction of divorce legislation. The Family Law (Divorce) Act was enacted in 1996, officially legalising divorce in Ireland. Initial divorce laws were relatively strict, requiring couples to live apart for four out of the previous five years before filing. In 2019, a referendum passed to ease divorce restrictions, reducing the separation period to two years. It is worth noting that the two years living separately includes time spent living separately and apart under the same roof. hugh condron hughcondron
How to get a divorce
Once you have been living separately for two years you can start your application. The vast majority of divorce applications are made in the Circuit Court. To start the process you need to lodge papers in the Circuit Court office. You will need to lodge a Family Law Civil Bill, this is a document that outlines the story of your marriage from the time you married through to when you separated and up to date. There are mandatory details required in the Civil Bill, these are to ensure that the court is satisfied that you were legally married and that you have been living separately for the right amount of time. You will need to list what you are looking for from the divorce. It will also include basic details relating to children, property etc this is to ensure that court makes proper provision for all parties. You will also be required to lodge an Affidavit of Means (finance details) and if there are children an Affidavit of Welfare. hughcondron Hugh Condron
The application process
When you have the necessary paperwork prepared, either by a solicitor, private company or yourself, three copies of each need to lodged in the Circuit Court office (one for the court, one for your ex and one for you). Lodging paperwork can be by post or in person, usually by appointment. The court office will check the paperwork to make sure it is presented correctly and includes the mandatory information required. If they are happy they will stamp the paperwork and assign a court Record Number, they will open a file with one copy of the paperwork and return the remaining two copies to you. In simple terms the application for divorce has been accepted and the process has begun. Please note if you are lodging the paperwork yourself and something is wrong the court clerk can only point out what is wrong they are not permitted to give you legal advice. hughcondron hugh condron
What is the process, what happens next?
At this stage you know about the application and the court knows about the application. The next step is to inform you ex about the application. To do this you need to 'serve' them a copy of the paperwork i.e. Family Law Civil Bill and Affidavits. Service is by way of Registered Post to their home address or place of work whichever you used in the details in the Civil Bill. You will be required to get a Certificate of Post as well as the Registered Post receipt with tracking number (this is because you will need to prove service at a future date). Provided the paperwork is delivered and not returned, now all the parties are aware of the divorce application i.e. you, the court and your ex. Even if your ex is aware of the application or you are on good terms, you will still need to serve the paperwork on them. hughcondron hugh condron
What happens if the paperwork I serve is returned undelivered?
In this case you need to hold onto the envelope with the return stickers from An Post. You need to try and serve the papers again by Registered Post. If they are returned a second time, again, keep the envelope with the return stickers, these will be used as evidence of your attempts to serve the paperwork. You need to make an application to the Court for what's called substituted service, this is done by way of a Notice of Motion and an Affidavit in which you outline your attempts to serve by Registered Post and show evidence of the returned envelopes. If the court is satisfied by your attempts and that the address for your ex is the correct one, they will normally allow you to serve the paperwork by ordinary unregistered post. Once you have that Order you can send the paperwork by normal post (just get a Certificate of Post), the timeframes outlined below will start from the date you post the paperwork. hughcondron HUGH CONDRON Hugh Condron
How to proceed?
What happens next is very much up to how your ex responds to receiving the divorce paperwork. Essentially, your ex has only three options. They can either agree / consent to the divorce and what you are looking for, they can contest / fight the case or they can do nothing and ignore the process altogether. Whatever they choose to do will ultimately dictate the course the divorce proceedings take and will determine how long the process may take. Please see below for how each possible scenario may play out. hughcondron Hugh Condron
If they agree?
An agreement is the very best situation for all involved. Agreement can be reached before the process starts or indeed at any future time during the process. Some cases mean that there is nothing in dispute or very little that some compromise wouldn't resolve. Even so called ''complicated'' cases can be agreed with little or no fuss. It is always the best option, where possible, to talk things through to see if an agreement can be reached or seek mediation to see if things can be agreed through that process. If you both have agreed on everything i.e. to the divorce and where relevant, division of property, access, custody, maintenance, pensions and inheritance rights then both parties need to sign Terms of Consent that outline the agreement that has been reached. When that is done you need to inform the court that you have reached an agreement and that you would like the case to be settled based on the terms of the agreement. This is done by way of a Notice of Motion, basically this is the formal way of informing the court of the agreement and seeking a date for a final hearing. You may be lucky to get a date straight away or, depending on the court and its schedule, you may first get a date to meet with the County Registrar who will give a future date for the divorce hearing depending on availability of dates, but usually the court likes consent cases because it means less work for them and it clears your case off their books. hugh condron hughcondron
If there is no agreement?
If there is no agreement and your ex wishes to contest / fight the case then it is up to them to inform the court of this. They have ten days from receipt of the divorce paperwork to lodge with the court office what is called an Entry of Appearance, this is a simple one page document that acknowledges receipt of the paperwork and the fact that they wish to contest the case. Once they do that they must then lodge what is called a Defence and Counterclaim. The defence is where they respond to the points you made in your Civil Bill, either agreeing with you or offering their side of the story. The counterclaim is then where they outline their take on things, similar to the layout of your Civil Bill, and outlining what they want from the divorce. Your ex will also be required to lodge an Affidavit of Means and Welfare. Nearly all the time the divorce itself isn't being contested and if you are living apart for two years it can't be contested. It is more likely that it is the division or sale of property or maintenace, pensions etc that is being disputed.
You will then both be required to provide ''vouching'' i.e. bank / revolut statements, credit cards, payslips or sources of income, pension statements etc for one year prior to the divorce application and up to date. You both then have the opportunity to raise questions on the financial documents provided and expect to receive reasonable replies and provision of further documentation where necessary. Queries usually relate to income and expenditure where you or your ex claim a certain amount of income or expenditure but the statements etc clearly show something else, you are required to provide reasonable explanations and where you don't these can be raised in court before the judge.
If your case is outside of the Dublin Circuit Court you and your ex will receive a summons to attend a Case Progression hearing with the County Registrar. This hearing is for the County Registrar to establish whether or not you have both provided vouching to each other and if you have raised queries and received replies. The County Registrar, depending on what has happened, may make orders for vouching to be provided and queries answered or, if satisfied that you have both done what you are supposed to, may move the case forward for a date to be made for a full hearing before a judge. If your case is in Dublin, you will be expected to have all of this done and then it will be up to either party to apply for a Case Progression hearing to move things along at which time the County Registrar will determine whether or not the case is ready to go forward for a full hearing.
All of the above is in very simple terms but the reality is that this particular part of the process will add months and sometimes years to the lenght of your divorce proceedings. When you do get to see a judge for your final hearing you are in essence saying 'judge we can't agree on x, y or z can you make the decision for us based on the facts of the case'. You must remember that the judge doesn't know either of you from Adam, they are not emotionally involved or invested in your case and will make decisions based on the evidence presented and on the civil standard of 'on the balance of probabilities'. They must make provision for both parties, taking into account the needs of any children first. But more importantly they can only make orders that are allowed by the legislation that is available to them. hughcondron hugh condron
What if my ex ignores or doesn't respond?
So you've served the paperwork on your ex and they just don't respond, what then? As mentioned earlier, your ex has 10 days to respond to receiving the papers if they want to contest the case. If that ten days expires with no response you have to send them what's called a 14 day warning letter (by Registered Post) explaining that you sent the papers on a particular date, they had until a particular date to respond, they haven't responded so you are giving them another 14 days to respond. However, the letter also contains the provision that if they do not respond this time that you are going to apply to the court for a hearing without them and the divorce may be granted in their absence.
If they don't respond to the warning letter you need to make an application to the court for your case to be heard in the absence of your ex because they are not engaging in the process. This is done by way of a Notice of Motion where you outline what has taken place so far i.e. you served the papers, sent a warning letter and provide evidence by way of Affidavit that you did what you say you did. Your Notice of Motion will more than likely be heard by the County Registrar and they will usually make an Order giving your ex a further chance to engage within a certain amount of time. You will probably have to write to your ex again but this time it is backed up by the fact that a court Order was made. If the court ordered time expires with no response you have to repeat the process of applying to the court for a hearing in the absence of your ex, only this time your application is backed up by the fact that your ex has ignored a court Order. Depending on the court they may make a further Order for your ex to respond or they may think they have had ample opportunity to respond and your case can be moved forward for a date to be given for a final hearing. If that happens, as long as the judge is satisfied, your divorce can be granted in the absence of your ex.
The above is the same if your ex enters an Appearance but doesn't lodge and serve a Defence and Counterclaim in the time allowed. hughcondron hugh condron
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All of the above is general information and in no way constitutes legal advice. If you are thinking about divorce, in circumstances where it is possible you should engage with your ex and try to reach agreement or attend mediation to try and come to agreement. There is a legal obligation on solicitors to advise you of mediation and alternatives to divorce. Remember, you can ask for anything you like in a divorce but this isn't TV and it's not the USA, there are no automatic entitlements. If you believe you are entitled to something then you can ask for it but you must be able to show evidence as to why you believe you are entitled to it i.e. what contribution did you make or what loss did you suffer that would mean you are entitled to make a claim for something. hugh condron hughcondron
There are different rules around the service of documents outside of the Republic of Ireland these generally refer to extended periods of time for your ex to respond.
If you are not living separately for the two years required for a divorce then a Judical Separation is an alternative to divorce. Unlike a divorce your marriage will not be dissolved but Orders can be made to take care of everything else. When the two years of separation has been met you can apply for a divorce or if the Judicial Separation process is still ongoing transfer it to divorce proceedings.
The criteria to apply for a Judicial Separation can be any of the following, you have been living separately for one year, there has been desertion by your ex for a continuous period of at least one year immediately preceding the date of the application, either of you has committed adultery, that the marriage has broken down to the extent that the court is satisfied that a normal marital relationship has not existed for a period of at least one year immediately before the date of the application or your ex has behaved in such a way that you couldn't reasonably be expected to live with them (yes this covers a multitude of things).
You should always seek legal advice in relation to any aspect of the law that you are unsure of. hughcondron hugh condron Hugh Condron HUGHCONDRON
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hugh condron Hugh Condron HUGHCONDRON hughcondron
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