Divorce and judicial separation matters may be heard by the Circuit Court or the High Court. Both Circuit and High Courts have complete jurisdiction.
The vast majority of matrimonial, family divorce and judicial separation cases are heard in the Circuit Court. An application may be made to transfer a case to the High Court if the asset valuation exceeds €3 million, but it is not commenced, then either party may require that it be heard in the High Court.
Very high-value cases may be heard in the High Court. In some cases, it may be necessary to institute proceedings in the High Court if certain other reliefs and orders, separate from those under matrimonial legislation, are required. Where a case is commenced in the High Court, either party may apply to have the case moved down to the Circuit Court.
The Circuit Court Rules provide that divorce proceedings are to be taken where the party ordinarily resides and carries on a business, occupation or profession. Either of the spouses must be domiciled in the state.
Alternatively, a court may assume jurisdiction on the basis of one year’s residence in the State, ending on the commencement of proceedings. The Brussels II Regulation on Jurisdiction in Civil Matters confers jurisdiction on the basis of habitual residence and a number of other bases.
Where divorce proceedings are commenced, the court may alternatively make an order for judicial separation or nullity.
Family Law Civil Bill
Proceedings in the Circuit Court are commenced by the issue of a Family Law Civil Bill; A prior one-sided application is required in relation to seeking relief on the basis of a foreign divorce or separation.
The Family Civil Bill must set out particulars, date and place of marriage, the time parties have lived apart, details of previous relief sought, particulars of dependent children including age, date of birth, details of family home and residence, including former family homes, occupation and ownership thereof, particulars of movable property, the basis of jurisdiction, the relief sought, provisions of Divorce Act relied on.
The Civil Bill must be signed and dated by the applicant, a solicitor or Law Centre on his behalf. The County Registrar issues the Civil Bill.
The Civil Bill is lodged together with certificates and affidavits of means in cases involving financial relief and affidavits of welfare in relation to dependent children, where applicable. A certificate must be furnished.
The solicitors for the parties must discuss the possibility of reconciliation and supply the particulars of a properly qualified person. They must discuss the possibility of mediation with a view to entering a separation agreement or divorce on an agreed basis.
He or she must furnish appropriate names and addresses. He must discuss the possibility of separation by deed of separation and ensure that the applicant is aware of the possibility of judicial separation instead of divorce.
The solicitor must certify that he has so advised the parties, and this certificate must be filed with the Family Law Civil Bill when issued.
The affidavit of means is in a prescribed form. It is to set out the assets and liabilities of the parties, the income and outgoings, debts and liabilities. It is also to set out particulars of pension benefits.
The affidavit should set out a full disclosure of the relevant assets, liabilities, income and expenditures. It may be the basis for later discovery. The affidavit of means is intended to provide the court with an overview of the financial positions of the party. It is intended to be completed comprehensively. The figures must be justified by the spouse concerned.
The affidavit of welfare is to set out particulars of the children, their age, position in the family, childcare arrangements, maintenance, educational access, and accommodation. The purpose is to give a court, an overview of the dependent family members.
The other spouse may file an alternative affidavit of welfare where he or she does not agree with the contents of the affidavit filed.
The Family Law Civil Bill should be served in the general manner prescribed in respect of Circuit Court Proceedings.
It may be served under EU Brussels II Regulations. Leave is no longer required to serve within the EU. There must be a basis of jurisdiction under the Brussels Regulation. An endorsement is required setting out the basis of jurisdiction in the Civil Bill.
A party who appears in response to a Civil Bill must enter an appearance within a 10-day time frame. In practice, extensions of this timeframe are readily allowed. A defence is required within a further 10 days. Once again, the defence is commonly filed significantly later than that, with the consent of the parties. A counterclaim may be embodied within the defence.
A party may bring interlocutory applications or motions in the divorce proceedings in accordance with the standard court procedures. The motion is based on an affidavit setting out the basis for the order claimed. The motion is heard on the relevant return date or an adjourned return date.
If the respondent has not appeared or entered a defence, an application for orders in terms of the Civil Bill may be sought. A further notice must be given of the intention to do so in writing, together with an offer consenting to the late filing.
If the defendant defaults, the motion may be heard for orders in terms of the Civil Bill. The Court may grant the order sought. In the alternative, and more commonly, it may grant leave to the respondent to defend all or aspects of the proceedings.
Where third parties are party to applications or to the proceedings, such as a pension trustee, affidavits of representation should be filed, which should set out the basis of the representation.
Affidavits must be filed on the relevant parties within 28 days of service of the application for relief or within such further time as the court directs. This commonly occurs in connection with a proposed pension adjustment order. The time limits may be extended.
Before a divorce case is set down for trial, practice directions require that certain matters be dealt with and steps taken. In particular, discovery must be completed in full. There must be comprehensive disclosure of expert reports, business reports, valuations and accounting reports. The affidavit of means must be fully updated and exchanged.
The particular practice will depend on the relevant County Registrar’s Office. In Dublin, a notice of a fixed date for trial is issued and served. On the relevant date, the court fixes a hearing date. A notice of trial is served in other Circuits and is listed for the next hearings.
Case Management provisions now apply. See the separate sections on case management.
Family law hearings are heard in camera, i.e. the public is not admitted. Wigs and gowns are not worn by the judge or legal representatives.
Barristers, solicitors, or others may be permitted to attend hearings in order to make a report. The report of proceedings or publication of the decision may be permitted, provided that nothing identifies the parties or children concerned.
Parties may apply for leave to be accompanied by other persons. This permits the involvement of so-called McKenzie’s friends to assist lay litigants. They may take notes and make suggestions regarding the examination of witnesses.
A person who wishes to be accompanied by another person in court must complete a form, which is to be lodged with the County Registrar in advance. He must apply to the court for approval of the accompanying person.
Family mediators, persons engaged in family law research, and persons engaged by the court service to prepare court reports or proceedings may attend. A recorder may attend court to publish reports of proceedings. It is subject to the approval of the court and the direction of the court. He must be attending for the purpose of preparation and publication of reports of proceedings.
Documents may be furnished, whether prepared for the evidence or given in evidence to entities conducting hearings, investigations or inquiries on any matter under a statutory power. Such documents are to be private and are to be dealt with in non-public hearings.
The court may, by order allow the disclosure of documents and evidence to third parties if it is required to protect their legitimate interests.
Where parties agree to the terms of the divorce, an uncontested order may be sought. The affidavit of means and affidavit of welfare must be filed together with consent to the terms on which the applicant makes a motion for judgment.
If the parties have agreed on the terms of ancillary relief, then the application for a divorce may be by way of consent. This may be the case where there are no dependent children and the parties have been separated for some time.
The court must be satisfied that a basis for divorce jurisdiction is available. Evidence must be given of the relevant facts and basis for the decree. The courts will not allow postal or form-based divorce. The court must be satisfied that proper provision has been made for the requisite parties, including in particular, children of the marriage.
Parties may make copies of orders available to schools, educational bodies, child welfare agencies, detention centres, passports authority, Minister for Justice, Minister for Foreign Affairs, diplomatic, immigration, bodies having immigration competence, Garda Síochána, banks, Health Service Executive, Adoption Authority, Guardian ad Litem, maintenance centre authority, and various others in various specific contexts.
A relevant copy or extracts of the order as are necessary for the entity to perform its functions only may be furnished only.
See separately the section on divorce and family law in the High Court. A divorce proceeds by way of a special summons, which is returned, in the first instance, before the Master of the High Court. Affidavits of welfare must be filed. The Master’s function is to ensure that the papers filed are in order. The Master may transfer the matter to the judges’ list. Cases are then assigned as hearing dates.
Cases are managed through the case management system. When all issues are resolved in High Court, a hearing date is allocated. A direction is made for a hearing to deal with all pretrial issues. This includes in particular, discovery.
The Family Law summons must be verified by affidavit, setting out particulars of the marriage, length of time living apart, particulars of children and dependents, whether there is a possibility of reconciliation, details of separation agreement, domicile, details of family home and residence, details of real property.
Where the summons is based on jurisdiction under the Brussels Convention, the basis of jurisdiction must be set out. It must be confirmed that there are no related proceedings pending in another state.