Following the breakdown of a marriage, spouses are often left bewildered as to their options and rights. Recent legislative changes however, have greatly increased the number of options open to spouses following marital breakdown. A family law solicitor will go through each option in detail to ascertain which route is most appropriate for them. The options include:
Separation by Fact
This is simply where the spouses no longer cohabit with one another and no legal action is taken in order to take account of their changed circumstances.
Deed of Separation
A Deed of Separation is a document that may be drawn up and executed by the parties to a marriage, where that marriage has broken down and where the parties do not wish to have recourse to the Courts for the purpose of agreeing the terms of the breakdown. A fundamental provision of every separation agreement is an agreement that the parties will live apart. Usually a Deed of Separation will make provision for custody, access to children, maintenance, division of matrimonial property and Succession Act rights. The terms will be committed to writing and signed by both parties.
It is possible to have a Deed of Separation made a rule of court, if it contains a provision relating to the payment of maintenance. If the Deed is made a rule of court the spouse who is receiving the maintenance can have the maintenance paid through the District Court Office and can then avail of the District Court enforcement mechanism for the recovery of maintenance arrears. If the Deed of Separation is made a rule of court the spouses are also afforded the remedy of contempt of Court where a breach of the agreement occurs.
A Deed of Separation is a bar to proceedings for Judicial Separation however it does not act as a bar to Divorce proceedings but the Court is required in determining an application for a Divorce to have regard to the terms of a Deed of Separation entered into between the parties and which is still in force.
The granting of a Decree of Divorce in a Court effectively relieves spouses from the obligation to cohabit with one another and allows them to remarry. An Irish divorce may be obtained in either the High Court or the Circuit Court depending on the extent of the family property. There is no obligation on spouses to have either sought a Judicial Separation or effected a Deed of Separation before seeking a Decree of Divorce.
In order to successfully obtain a Decree of Divorce from an Irish Court, it is necessary to satisfy the Court that:
1. At the date of the commencement of the proceedings, the spouses have lived apart for four out of the five previous years.
2. There is no reasonable prospect of a reconciliation between the spouses.
3. Proper provision is or will be made for the spouse and dependent members of the family.
In addition, before an Applicant spouse will be granted the Decree of Divorce sought, the Court must be satisfied that either spouse is domiciled in the State at the date of issue of the proceedings or that either spouse was ordinarily resident in the State for one year before the date of issue of the proceedings.
The relevant period of four out of five years must have expired before the issuing of the Application for the Decree of Divorce.
As a matter of case law, it is possible to be granted a Divorce if the parties have lived separate and apart, even under the same roof.
Decree of Nullity
The law of Nullity is concerned with the legal validity of a marriage at its inception. A marriage can be declared a nullity where some vital component, for example, the consent to marry, is missing. When a marriage is declared null and void a court is declaring that the couple were never legally married to one another and they are then legally free to remarry. The main distinction between a Decree of Nullity and that of Divorce, is that in a Divorce situation, a valid marriage is dissolved, whereas, in a Nullity situation, there never was a valid marriage in the first place. It is important also to note that there is a difference between a Nullity granted by the Church and that granted by the Courts. They are two different remedies and the granting of one, does not automatically entitle a spouse to the granting of the other.
The effect of a Decree of Nullity is that spouses cease to be legally married to one another and so loose their rights as spouses under various associated legislation. For instance, a person who has successfully sought a Decree of Nullity through the Courts will not be entitled to receive any maintenance in respect of him/herself, as he/she was not a spouse at any time of the other. Also, the various succession rights of spouses will be affected by the Decree, as the parties are no longer considered spouses of each other.
Spouses may seek a Judicial Separation through the Courts. There are six grounds upon which the Court may grant a Decree of Judicial Separation:
1. The spouse has committed adultery.
2. The spouse has behaved in such a way that the Applicant cannot reasonably be expected to live with the Respondent.
3. There has been desertion by one spouse of the other spouse for a continuous period of at least one year immediately preceding the date of the application.
4. The spouses have lived apart from each other for a continuous period of at least one year immediately preceding the date of the application and the Respondent consents to a decree being granted.
5. The spouses have lived apart from one another for a continuous period of at least three years immediately preceding the date of the application.
6. The marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application. In granting a Decree of Judicial Separation the Court can make various ancillary relief orders. On obtaining a Decree of Judicial Separation the parties are no longer required to cohabit but however they are not entitled to re-marry.