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Family Law Services

Services >> Family Law Services

The First Consultation
Separation Agreement
Judicial Separation
Divorce
Maintenance Agreements
Domestic Violence
Child Law
Co-habitation Agreements
Adoptions

1. The First Consultation

The first consultation is very important. During the first consultation, our goal is to identify the facts in a sensitive manner. We will communicate easily with you in order to obtain the relevant information. We will then identify the legal issues involved in a professional but client centred approach. We will discuss the available legal or non-legal avenues (such as collaborative law or a negotiated settlement), evaluate same and advise the client of the most appropriate solution for them.

Affidavit of Means

As part of a legal solution or a negotiated settlement both parties must file an affidavit of means especially where financial relief is being claimed.

Affidavit of Welfare

Where there are dependent children an affidavit of welfare must be sworn and filed. The affidavit of welfare must contain details of the dependent children such as the address the children reside and the educational arrangements for the children.

2. Separation Agreement

If a married couple can agree on the terms on which they will live separately without recourse to the courts and a document known as a separation agreement may be drawn up and executed by the parties. The agreement is a legally binding contract setting out each parties rights and obligations to each other. A fundamental provision of every separation agreement is an agreement that the parties will live apart and the main issues dealt with in a separation agreement are as follows:

Maintenance - Maintenance to be paid by one spouse to another can be set out in a clause contained in the agreement. The amount will usually have been agreed in prior negotiations. Reference should be made to the duration of time during which maintenance is to be paid and how the maintenance is to be paid. It is also usual to include a clause in relation to variation of maintenance in the future.
Property - All matrimonial property may be dealt with in the separation agreement. Frequently it is agreed between the parties that one of them will remain in the family home until such time as the children reach the age of eighteen whereupon the family home will be sold and the proceeds distributed in an agreed manner.
Succession - The parties may renounce their respective rights, under the Succession Act 1965, to a share in the estate of the other by the inclusion of a clause to this effect in the agreement. It should be noted that any such renouncation will not prevent a spouse from making an application to the court to have provision made out of the estate of a deceased spouse pursuant to the Family Law Divorce Act 1996, s18(1)
Pensions - There is no provision in a separation agreement for agreeing an adjustment to a pension scheme of which either of the spouses is a member. If a pension adjustment order is required an application may be made on consent for an ancillary order pursuant to a decree of judicial separation.
Taxation - Where maintenance is being paid by one spouse to another the issue of income tax should be dealt with in the separation agreement. Separated spouses may elect for joint assessment provided they are resident in the state for income tax purposes and also provided that legally enforceable maintenance payments are being made by one spouse to the other.
Indemnification - An indemnification clause seeks to have the effect of indemnifying both spouses from all future debts which are incurred by either of them.
Guardianship & Custody of Children - Where there are children of the marriage under the age of eighteen years arrangements regarding the guardianship, custody and access to the children must be detailed in the deed of separation.

3. Judicial Separation

When a couple cannot agree the terms by which they will live separately, an application to the courts for a Decree of Judicial Separation can be made by either party. The court must be satisfied that:

The grounds for the application exist.
The couple has been advised about counseling and mediation.
Proper provision has been made for the welfare of any dependants.
If it is satisfied, the court will grant a Decree of Judicial Separation. The Decree confirms that the couple is no longer obliged to live together as a married couple. The court may also make orders in relation to custody and access to children, the payment of maintenance and lump sums, the transfer of property, the extinguishment of succession rights, etc.

An application for a Judicial Separation is made either in the Circuit Court or the High Court. As in all family law matters, cases are heard in private and the public is not admitted to the courtroom.

An application for a Judicial Separation must be based on one of the following six grounds:

One party has committed adultery
One party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them
One party has deserted the other for at least one year at the time of the application
The parties have lived apart from one another for one year up to the time of the application and both parties agree to the decree being granted
The parties have lived apart from one another for at least three years at the time of the application for the decree (whether or not both parties agree to the decree being granted)
The court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of the application for the decree.

Ancillary Orders:

In both judicial separation and divorce the court is given powers to make orders for ancillary reliefs in respect of maintenance, pensions, property, financial compensation orders or succession rights. In making such orders the court shall have regard to the following factors:

Actual and potential financial resources i.e. the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future.
The financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of remarriage or otherwise)
The standard of living enjoyed by the family before the proceedings were instituted or before the spouses separated.
The age of each of the spouses and the length of time the spouses have lived together.
Any physical or mental disability of either of the spouses.
The contributions which each of the spouses has made or is likely to make in the foreseeable future to the welfare of the family.
The earning capacity of each of the spouses.
Any income or benefits to which each of the spouses is entitled under statute.
The conduct of each of the spouses.
The accommodation needs of either spouse.
The value to each spouse of any particular benefit.
The rights of any person other than the spouses but including a person to whom either spouse is remarried.

4. Divorce

When applying for a divorce in Ireland, four documents must be presented to the Circuit Court.

An application form (known as a Family Law Civil Bill). This document describes spouses, their occupations and where they live. It also sets out when they were married, for how long they had been living apart and the names and birth dates of their children.
A sworn statement of means (Form 37A). This document sets out the assets, income, debts, liabilities and outgoings.
A sworn statement relating to the welfare of the children (Form 37B). This document sets out the personal details of the children of the marriage. It describes where they live and with whom. It also describes their education and training, their health, childcare arrangements and maintenance and access arrangements.
A document certifying that the applicant has been advised of the alternatives to divorce (Form 37D). This document is sworn by a solicitor and it certifies that the applicant has discussed the options of reconciliation, mediation and separation.

When all of the necessary documents have been filed, the applicant will be given a date for the court hearing. The hearing will be held in private and the applicant will need to show the court that they meet the requirements of the Family Law (Divorce) Act 1996. If the Court is satisfied that there are grounds for a divorce, it will grant a decree of divorce.

Grounds for divorce:

Section 5(1) of the Family Law Divorce Act 1996 sets out the grounds upon which a court will grant a decree of divorce

At the date of the institution of proceedings, the spouses have lived apart from one another for at least four years during the past five years
There is no reasonable prospect of reconciliation between the spouses
Such provision as the court considers proper having regard to the circumstances that exist or will be made for the spouses and any dependant members of the family.

5. Maintenance Agreements

The parties can sometimes reach an agreement as to the amount of payment to be made by one spouse to another in relation to maintenance or as part of a more comprehensive separation agreement. s27 of the Family Law Act 1976 provides that any agreement that attempts to exclude or limit the operation of the Act is void, therefore spouses cannot contract out of their rights to go back to court to seek a variation of the agreement at some future point.

6. Domestic Violence

Barring Order - A barring order is an order granted in the District Court directing the respondent to leave the place where the applicant resides and prohibits the respondent from entering such place until a further order of the court. The order may also prohibit the respondent from using or threatening to use violence against the applicant, molesting or putting in fear the applicant or any dependent person, attending at or in the vacinity of, or watching or besetting a place where the applicant or any dependent person resides. A barring order can last for up to three years or such shorter period as the court may specify.
Protection Order - A protection order does not prohibit the respondent from entering the place where the applicant resides but orders the respondent not to use violence or threaten to use violence against, molest or put in fear the applicant or any dependent person. If the parties do not reside together, the respondent should not watch or beset the place where the applicant or dependent person resides. The protection order lasts until the determination of the baring order or safety order proceedings.
Safety Order - This remedy was introduced by the 1996 Act and is in effect a long-term protection order. A safety order cannot be granted in place of a barring order unless both remedies are sought. Safety orders are available to spouses, cohabitants for six of the previous twelve months, the parent of an adult child, persons of full age residing in mainly non-contractual relationship and the Health Board on behalf of an entitled aggrieved person who may be an adult or a dependent person.

7. Child Law

The courts will take the following into consideration when determining custody, access & guardianship of a child: Religious welfare of the child, moral welfare, intellectual welfare, physical welfare, social welfare, emotional welfare, tender years principal in relation to the custody of younger children, parental caring capacity, keeping siblings together, keeping siblings with the Marital Father where the mother is deceased and the wishes of the child

Custody is the right to the physical care and control of a child. When the parents of a child in Ireland separate and they cannot agree on who should have custody of the child, the court will decide. The married parents of a child are automatically joint guardians and custodians of their child. In the case of a child born to an unmarried mother the mother is automatically the child’s guardian and sole custodian.
Access -Where a parent remains a guardian but does not obtain custody of a child they are entitled to apply for access to the child. The best interests of the child must take precedence where there is conflict between the child’s rights and parents’ wishes in relation to access. An access order is never a final order and can be varied at any time.
Guardianship - Guardianship bestows rights and duties on parents in respect of the upbringing of their children. It encompasses the duty to maintain and properly care for the child and refers to the decisions that must be made during the childs lifetime which relate to the general lifestyle and development of the child such as education, religion and general rearing. The natural mother of a child is automatically a guardian of the child.
Protection of children in emergencies - Part III of the Child Care Act 1991 governs the protection of children in emergencies. Members of the Garda Siochana and the HSE are given powers under the act to remove a child to safety when there are reasonable grounds for believing there is an immediate and serious risk to the health and welfare of the child
Access to children in care - Section 37 of the Childcare Act 1991 obliges the HSE to facilitate reasonable access to the child in care by his parents or any other person acting in loco parentis in respect of the child or any other person with a bona fide interest in the child. If a person is unhappy with the access granted, it is open to such person to apply to the court for appropriate directions. In such cases a court may make an order regarding access to the child by the applicant. It is also open to the court to preclude access by a named person.

Termination of children in care:

There are certain situations where a child is deemed to be no longer in the care of the HSE:

Where a child reaches the age of eighteen or where a child marries.
Where a child has voluntarily been placed in the care of the HSE such care will be terminated by a decision of the parents to resume custody.
Where a care order is discharged by the court.
Where an emergency care order made under s.13 or an interim care order expires and is not renewed.
Invalid Orders - If a court makes a determination that a care order is in some way invalid, it may refuse to exercise any power to return the child to a parent or any other person if it is of the opinion that to do so would not be in the best interests of the child. In such circumstances the court had the power to make a new care order.

8. Co-habitation Agreements

In Ireland a cohabiting couple is not recognised as a family and as such do not enjoy the legal recognition afforded to married couples. The protections offered to married couples by the Family home Protection Act 1976 and the constitution do not apply to cohabiting couples and so it is advisable for cohabiting couples to regulate their financial and property affairs by way of a cohabitation agreement. Any such agreement is likely to be legally enforceable so long as it is not conditional on the parties performing marital duties.

9. Adoptions

Those capable of adopting are:

A married couple living
The natural mother or father
A relative of the child
A widow or widower
A married person who is legally separated or who has been deserted
A single person

Upon an adoption order being made the legal nexus between the natural parents and their child ceases completely and all the legal rights and duties of the parent are transferred to the adopter or adopters.