Need a Divorce Lawyer? Top 27 Family Law FAQ's

Cosgrove Gaynard Solicitors

Q1- WHEN CAN DIVORCE BE GRANTED?

A decree of divorce can be granted when the court is satisfied that-

  • At the date of the institution of proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years
  • There is no reasonable prospect of a reconciliation between the spouses, and
  • Such provision as the court considers proper having regard to the circumstances exists or will be made for the spouse and any dependent members of the family.

Q2 - HOW MUCH DOES A DIVORCE COST IN IRELAND?

The fees for a divorce in Ireland can greatly vary.

Some of the key areas a solicitor will consider include:

  • Is it a really complex matter?
  • How much financial disclosures and requests are there?
  • How many trips to Court does it involve?
  • The length that it takes to finalise it? (is the other side being obstructive and prolonging the case)
  • Is the matter settled in or out of Court?

For a straightforward divorce the price could come in at around 2k.

For more complex cases, the prices can come in from 7k to 20k.

Q3 - DO I HAVE TO APPLY THROUGH A SOLICITOR?

The Family Law (Divorce) Act 1996 allows consenting couples to apply for their own divorce.

A spouse can also represent him/herself in the divorce proceedings, even if the Respondent is contesting and represented by a solicitor.

However, this is strongly recommended against if you want to achieve a successful outcome.

Q4 -HOW LONG DOES A DIVORCE TAKE IN IRELAND?

A quick divorce can take anywhere from 3 to 9 months depending on where you are in Ireland. In a contested divorce, it can take anywhere between 9 months and 2 or 3 years for your divorce to be finally completed.


Q5- How do you apply for a divorce?

A divorce application is commenced by the serving of Court stamped documents on your spouse, together with Affidavits of Service i.e. proof of such service. The documents will contain a Family Law Civil Bill, an Affidavit of Means and/or an Affidavit of Welfare depending on whether there are dependent members of the family.

You must provide proof of the sending or serving of all documents including notice of the divorce hearing by sworn Affidavit. Other documents may be required depending on the response from your spouse.

Q6 - What happens if the Respondent's spouse fails to reply?

The Respondent spouse has three choices. They can send you a hand written letter agreeing to the divorce "no contest" in which case the Application is simplified.

They can ignore the documentation in which case you can proceed but you will need to serve a 14 Day Warning Notice, Affidavit of Service of such notice and in some cases a Grounding Affidavit.

Or your spouse can contest the divorce on particular grounds, in which case they will be required to serve on you all the first mentioned documentation above declaring the grounds under which they are contesting.

Q7- What if my spouse lives abroad in another EC country?

If your spouse is living in any other EC country (except Denmark ) you can still obtain your divorce provided you know where your spouse lives. In such cases, you must allow 35 days for a response and a further 28 days for the Respondent to file a defence.

This will add another month to two months to the procedure.

Remember, Ireland will not recognise foreign divorces if either party were not domiciled in the country where the divorce was granted.

Q8- What if my spouse is living outside the EC?

A separate application must be made to the Court to serve the Family Law Civil Bill outside the EC to a known address. The Applicant will have to attend with the County Registrar to make the application which, must be supported by an Affidavit.

If difficulties arise with service out of the country then the Applicant will have to apply to the County Registrar for an order for direction as to service of the Family Law Civil Bill. Again, such an application will add one to two months to the procedure.

Q9- What if I do not know where my spouse is?

You will have to make separate application to the County Registrar for permission to proceed. You will be required to outline the circumstances, what efforts you have made to contact your spouse, whether you enquired from his family etc. You may be required to place advertisements in newspapers.

Q10- If my spouse lives in the state, how long will the procedure take for you to start proceedings?

If you start the procedure without delay and your spouse responds positively within 10 days, you should be on a list for the next Circuit Court Family Law hearings within 3 weeks of instituting proceedings.

It depends on your divorce solicitors attentiveness to completing the procedures, whether your spouse responds and the next available date for the hearing.

Q11- What should I do if my spouse and I are unable to agree terms?

If spouses are unable to resolve their marriage difficulties then they may engage in mediation to effect a separation agreement or a deed of separation.

Q12- What is mediation?

Mediation is a process whereby use is made of a mediator or referee to help negotiate between disagreeing spouses. Mediation and Separation should then be considered as an alternative to divorce where the issues of custody and parenting, maintenance, child-care, the family home, pensions, assets, debts etc. can then be sorted in an amiable way.

This process can ensure that the interests of both parties and the children are satisfied. A Mediation Agreement can therefore be a first step in addressing the difficulties encountered in a marriage.

Q13 -Where can I obtain mediation? The Department of Social Community and Family Affairs operate a free Family Mediation Service with Full Time Offices at various centres throughout the country. The mediators do not provide legal advice.

Q14- What are the benefits of a mediation agreement? A Mediation Agreement can be a prelude to a Separation Agreement. We would recommend that you consider this route especially if both parties are finding it difficult to agree a settlement.

A free information booklet on Separation and Mediation is available from the court offices, and the Citizens Information Centres throughout the country also provide information on this subject.

Q15- What are the total costs involved using Divorce in Ireland for You ?

Like I've previously stated, the total cost of our services can vary. All prices are subject to change. For that charge we provide a free consultation, up to date information on divorce topics, completed documentation, a back up service by telephone, mail or email and a detailed Step By Step Guide on following the court procedures. We will be available to you throughout the procedure and will provide any extra or amended court documents sought, free of charge. Other costs are related to the charges of solicitors or Commissioners for Oaths for signing Affidavits witnessing your signature.

Q16- What if I have no Separation Agreement when applying for divorce?

If you have a settlement with your spouse over matters like Access to Children, the Family Home, Maintenance, Property, Finance etc and there is consent to the divorce or you do not envisage any contest you do not need to have a Mediation Agreement nor a Separation Agreement. You may be called upon to satisfy the Court that you are aware of the "alternatives" to divorce like Mediation, Separation Agreement or a Judicial Separation.

Q17- What if we have not sorted the Family Home?

If there is agreement on who is to obtain the family home and it is to be transferred to one spouse then you should consider consulting a solicitor and have the property transferred and waiver documents signed.

Unless you are in disagreement the Divorce Courts are not the place to transact your business. However it is possible to include your terms of agreement in relation to the Family Home, Maintenance, Custody, Access etc in your divorce application.

Q18- What if I have reservations that my spouse will not honour an agreement on maintenance after divorce?

Whether your spouse dishonours an agreement to pay maintenance based on, consent as outlined in your divorce application, a Separation Agreement, Court Orders granted under the Judicial Separation and Family Law Reform Act, 1989 or any previously attained Maintenance Order the situation is more or less the same. You will have to apply to the Courts for follow up action and enforcement of the orders granted.

Q19- Do I need to obtain a Separation or Divorce to solve issues in regard to access, custody of children, maintenance, the family home etc?

No.

Custody and access to children can be addressed through an application under the Guardianship of Infants Act, 1964.

Barring Orders, Safety Orders and Protection Orders can be availed of under the Domestic Violence Act, 1996.

Maintenance can be addressed under the Family Law (Maintenance of Spouses and Children) Act, 1976.

Issues in relation to the Family Home can be addressed under the Family Home Protection Act 1976, the Married Women's Status Act, 1957 and the Family Law Act, 1995. The later Act allows access to Ancillary Relief Orders to do with the determination of the ownership of property, maintenance orders, property adjustment orders, pension adjustment orders, financial compensation and lump sum provision etc.

Q20- What financial information must I give to the Court?

All court areas require an Affidavit of Means from the Applicant setting out details of their assets, debts, income and expenditure and pension details. The Circuit Court Rules, 2001, Rule 7 (a) declares that a Family Law Civil Bill shall be served on the Respondent together with an Affidavit of Means.

Q21- Can the financial information I give affect the divorce?

The filing of an Affidavit of Means should not be treated lightly as it is and will be a court record of a person's financial position at that given time. If circumstances were to change with either party i.e. ill health, unemployment, a win on the lottery or evidence of assets not declared etc either party can return to the court even after divorce for relief. It is important therefore that the data filed is accurate and truly representative of the Applicants position.

It should be remembered that either party can make an application to the court for an Order of Discovery and either party can request the other to vouch any or all items referred to.

With a divorce in Ireland you take great care in ensuring that your Affidavit of Means is representative of your financial circumstances and will assist with expert and confidential information. If you are concerned with the disclosure of your financial circumstances we offer a free consultation service by appointment.

Q22- What information must I give regarding the children?

An Affidavit of Welfare is required in all cases where there are dependent children of the marriage and family. The court must be satisfied that proper provision is made for any dependent children of the marriage and family and therefore require details on where and with whom the children live, who cares for them, their education, accommodation, health etc.

Q23- Can I continue to use my married name after Divorce?

Wives may take their husband's names on marriage or retain their former names. A wife can retain her former husband's name after divorce provided she is not using it for the purpose of fraud or to defraud him or to invade other rights or to embarrass him, for instance, by claiming or inferring that he is not legally married to his second wife.

Q24 -What is Section 18 (10)?

Section 18 (10) concerns the death of either spouse and empowers the court to make an order preventing either spouse from applying under section 18 from the proceeds of the deceased spouse's estate.

Section 18 (10) protects each party's estate on death from a claim of interest by the surviving spouse. Even if the Applicant decides not to apply for this Order it can be insisted upon by the Respondent especially if he/she seeks legal opinion.

Q25- Can I agree terms with my spouse without any form of written agreement?

Any Financial Settlements agreed by the parties that have not been the subject of a Separation Agreement, Deed of Separation or Judicial Separation should be clearly set out in written form. If you intend applying for any Financial Relief Order or specify agreed terms that are not so agreed and you do not have the consent of your spouse and your divorce becomes contested for any reason the documents supplied by us will not be correct. In such circumstances we will not grant you any refund.

Q26 -What is a Section 6 Certificate?

Under Section 6 of the Divorce Act, 1996 any applicant, who is represented by a solicitor , must receive from the solicitor a certificate stating that the solicitor has complied with the section and discussed the possibility of reconciliation between the spouses, has given the names of qualified persons who could help effect a reconciliation between the spouses who have become estranged, including the names and addresses of mediators, and discussed the possibility of engaging in mediation to help effect a separation agreement.

The certificate must also state that the solicitor has discussed with the Applicant the possibility of effecting a separation by the negotiation and conclusion of a Separation Deed or written Separation Agreement with the Respondent spouse. Finally the solicitor must make the Applicant aware of "Judicial Separation" as an alternative to divorce.

The Divorce Act is silent on how lay litigants (DIY Applicants) are to be made aware of alternatives to divorce.

Q27- Do I need to have a Separation Agreement or Judicial Separation before applying for divorce?

While there is no compulsion on anyone nor is it a necessity to have mediation or a separation agreement or a Judicial Separation before divorce we believe it is in your interest to make yourself aware of the above requirements and be in a position to satisfy the court that you are aware of the alternatives to divorce. Your divorce hearing could be adjourned if the Judge was not satisfied that you were sufficiently aware of the alternatives to divorce and that there was no prospect of reconciliation.

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