Judicial Separation & Separation Agreements:
It is a fact of life that unhappy differences can arise in relationships. This can result in the couple having to end their relationship. When this occurs there are questions as to how best the family’s assets should be divided and also in respect of access and maintenance arrangements for dependent children and their parents.
If a married couple can agree the terms on which they will live separately, they may enter into a Separation Agreement. The essence of a Separation Agreement is that it is an agreement. Both parties must consent to the terms of the agreement. The Separation Agreement is itself a legally binding contract. We can assist you in negotiating a just Settlement for you.
Where agreement cannot be reached between the parties it is possible to ask the Court to decide the terms on which the couple are to separate. This is known as a Judicial Separation and is an Order of the Court.
An application for a Judicial Separation must be based on one of 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.
It is now legally possible to obtain a Decree of Divorce in Ireland since the introduction of The Family Law (Divorce) Act, 1996. The parties must have been living apart from one another for a period amounting to four out of the previous five years before the application is made. Another requirement that the Court must be satisfied as to is that there must be no reasonable prospect of reconciliation.
Unlike Judicial Separation discussed above, the Irish Courts operate a system of ‘no fault’ Divorce. The only requirements are those listed above.
Should you wish to have a confidential consultation regarding your circumstances and the possibilities open to you, please do not hesitate to contact us.
Guardianship means a bundle of rights and obligations usually of parents, in respect of children. It relates to decisions on the general upbringing of the child. Married parents are both automatically joint guardians of their children. Neither separation nor divorce changes this. A father who is not married to the mother of his child does not have automatic guardianship rights in relation to that child, but has a right to be appointed guardian by formal agreement or by court order. A guardian has a right to apply for maintenance, custody or access in respect of the child.
What are my rights and obligations as a parent/guardian? What if I want to move abroad?
All parents have the right to be apply to Court to be appointed a Guardian. Usually Mothers, and married fathers, remain Guardians until the child becomes independent, but it is possible to have the rights and duties of Guardianship removed.
A Guardian has rights to decide on the long term and more important decisions that affect a child. This should be contrasted with Custody, which affects the day-to-day decisions. Guardians have a right to decide on a wide range of issues including medical issues, where a child goes to school and where the child lives.
The last point has caused significant hardship for parents in recent times. Given the economic position, one parent may feel that they have little chance of securing employment where they currently live and decide to move to another part of Ireland or to emigrate. Unfortunately, it is not a decision, which can be made by one Guardian only. Should the other Guardian not consent to the move, it will be necessary to bring an Application to the Court. The Court will always decide the issue based on what they feel is the best interests of the child.
If the other parent of your child has left the country without your permission, taking your child with them, it is possible to bring a Court application compelling them to return to Ireland so an Irish Court can decide the issue.
Custody means the day-to-day care, residency and upbringing of children under the age of eighteen. In cases of legal separation or divorce, joint custody, with the children to reside with one parent, with liberal access to the other is common. This depends on the practicalities of the living arrangements, and what appears to be in the best interests of the children.
Access refers to the right of the parent in Ireland with whom the child does not reside to spend time with the child, or more correctly the right of the child to spend time with the parent. It can include the right to have the child stay overnight and the right for parent and child to go on holidays together. Arrangements should be made taking into account the best interests of the child and the wishes of the child if they are old enough. Practicalities of working parents etc. should also be taken into account.
If the court considers it inappropriate to make an order for full access, depending on the age of the child, and the extent of the relationship with the parent for example, it can make an order for access to be supervised by a third party, perhaps another family member.
What are my rights as a Grandparent?
Grandparents also have a right to apply to the District Court for access to grandchildren if it is being denied.
Any orders for custody and access can be revisited and varied, where circumstances have changed.
Barring, Safety & Protection Orders
In Ireland the Gardai have the power to arrest and prosecute a violent family member. Under the law there are two main kinds of protection available, a Safety Order and a Barring Order.
A safety order is an order of the court which prohibits the violent person from further violence or threats of violence. It does not oblige the person to leave the family home. If the person lives apart from you it prohibits them from watching or being near your home.
A Barring Order is an order which requires the person to leave the family home. Both Safety and Barring Orders are obtained by applying to the District Court. You must attend the hearing. The Rules of Court stipulate certain requirements regarding the length of Notice to be given to your partner regarding the application. While you are waiting for the court to hear your application, the court can give you an immediate order called a protection order. The protection order has the same effect as a safety order. In exceptional circumstances the court can grant an interim barring order. This is an immediate order, requiring the violent person to leave the family home. A safety order can last up to 5 years and a barring order up to 3 years.
What are my rights as a partner in a co-habiting relationship?
Where two people, of any sexual persuasion, are living together in a relationship, certain rights and responsibilities can accrue to both persons. If you have been living together for a period of five years, or two years if you have a child together, and did so on the 1st January 2011, you are classed as ‘Co-Habiting’. This opens up the possibility of one partner applying for Maintenance, property Orders and Pension Adjustment Orders, from the other partner. This does not interfere with the right of a parent to claim Maintenance for children.
If your partner were to pass away, without leaving a Will naming you as beneficiary, it is open to the surviving partner to bring an application to Court to seek payment from the Estate of the deceased partner.
If you could not be classed as a ‘Co-Habiting’ partner you still retain the right to seek maintenance for any dependent children which reside with you. Also certain financial orders can be made, depending on the circumstances of each individual case.
Any possible applications are limited in time, so if you feel any of these provisions apply to you should contact us immediately.
Should you wish to have a confidential consultation regarding your circumstances and the possibilities open to you, please do not hesitate to contact McInerney Solicitors. All of these issues are time sensitive, so please contact this office to make appointment at once.