Former Prohibition The Irish courts did not have jurisdiction to grant a divorce until 1996. The Matrimonial Causes Act 1857, which created a possibility of judicial divorce on very narrow grounds, was never extended to Ireland. When the Irish Free State was formed, there existed the possibility of divorce by private Parliamentary Act. The Irish Free State Oireachtas received three private bills for divorce lodged […]
Background In 1989 there was neither divorce nor a modern system of judicial separation. Divorce a Mensa et Toro was an old procedure that might be granted where it was shown that one party to the marriage was at fault, having committed adultery, cruelty (physical or mental) or “unnatural practices”. Its effect was to relieve the parties of the technical obligation to live together. Limited […]
Applications The scheme allows qualifying cohabitants who are economically dependent to apply to the court for certain remedies. This includes maintenance, property or pension adjustment orders and orders for provision from the estate of the deceased cohabitant. As with family proceedings generally, the court has the discretion to adjourn the proceedings to allow for mediation and other alternative dispute resolution mechanisms. Adjournments may be made […]
Asset Division The Irish courts have held that all of a spouse’s assets are potentially subject to property adjustment orders in judicial separation and divorce. Unlike many other jurisdictions, pre-marriage assets or those inherited from family are not excluded. However, the source of the assets may be relevant in the exercise of the judicial discretion. Where, for example, a house has been inherited with strong […]
Custody & Access On granting a final order of judicial separation or divorce, the court may make orders in relation to custody and access in respect of dependent members of the family, children in particular. They may deal with issues, aspects or matters dealing with the welfare, custody of or access to the child. Custody is the right to immediate physical care and control of […]
Contract Law and Families In principle, it is possible to enter legally binding contracts on most issues. However, certain matters, including many in the family law sphere, are either regulated by statute or common law in the public interest. The terms of marriage and civil partnership are largely prescribed by law. Generally, it is not possible to enter an arrangement analogous to marriage that will […]
Annulment A civil partnership can be annulled if it is shown to be invalid. The application can be made by either partner or by another person who has an interest, e.g., a child after the death of the other. A civil partnership may be potentially annulled on the following grounds: either or both who are already married; either or both who are under 18 years, […]
Broad Criteria The judicial separation and divorce legislation set out broadly equivalent criteria to guide the courts in the exercise of their powers for the division of assets on judicial separation and divorce. The court is to have regard to the income, earning capacity, property and other financial resources which each spouse has or is likely to have in the foreseeable future. All income earned and […]
Orders The judicial separation and divorce legislation each contain significant powers for courts to make awards in relation to the family income and assets. The powers arise only when a court orders a judicial separation or divorce. Where a judicial separation has been granted, and a divorce is later applied for, the orders may, in effect, be reviewed. A judicial separation can be applied for […]
Orders In the context of judicial separation or divorce, a pension adjustment may be made for the benefit of an applicant spouse on behalf of the dependent family members. The order may be granted at the time of judicial separation or divorce or anytime afterwards. The court must consider whether, having regard to circumstances, proper provision has been or can be made under the other […]
Adjustment Order The judicial separation and divorce legislation allow a court to make a property adjustment order in the context of judicial separation or divorce. This applies both to the family home and to all classes of assets, including businesses. It includes an interest in a pension fund. Upon an order for judicial separation or divorce, an application can be made by either spouse or […]
Background The issue of recognition of divorce is of potentially great significance. Formerly, prior to the below amendments, the basis upon which a divorce was recognised in Ireland was extremely limited. Following the divorce referenda and European legislation, the position has been radically altered. The Constitution originally contained a provision prohibiting the enactment of a law allowing for the dissolution of marriage. To further support the […]
Challenge to Judicial Separation A challenge was taken to the judicial separation legislation as being inconsistent with the Constitution’s former prohibition of divorcee (pre-1995). It was argued that the one-year separation period did not allow sufficient time for reconciliation and undermined the Constitutional protection of the institution of marriage. The challenge was rejected in the High Court and the Supreme Court. Supreme Court held that […]
Overview The court may grant a preliminary order of maintenance in judicial separation and divorce proceedings. It may require a spouse to make a lump-sum payment or a periodical payment for the benefit of the other spouse and/or dependent children as and from the date of application to the date of the final orders in the judicial separation or divorce. On granting a divorce, the […]
Spouses’ Rights The Succession Act confers important rights on spouses. Succession rights can be renounced voluntarily by either or both spouses or civil partners at any time. This may be done in a separation agreement. In the case of a complete or partial intestacy, the Succession Act provides that the spouse takes all (or the relevant part of) the net assets if there are no […]
Guardianship & Divorce/JS Spouses continue to be guardians, notwithstanding judicial separation or divorce. Parties to voidable marriages are joint guardians of the children of the marriage, provided that the decree of nullity is granted after or during the period of 10 months before the birth of the child concerned. In the case of children born to parents who are married at the time, the parents […]