Family Law

Family law requires a balance between understanding what a client needs and managing what a client can expect, while looking for solutions in a practical, non-confrontational way. We always encourage clients to find a solution to their marital difficulties where at all possible, in ease of themselves and their children, and to reduce costs.

Where a solution cannot be found, family law can be an emotive and at times complicated process. It requires a professional approach at all times.

Some of the important issues to consider in any separation are the family home, other assets, finances and maintenance, custody and access, pensions, and succession rights. The welfare of children is of paramount importance.

Separation can be achieved in three ways

Mediation

A mediator can help a couple reach agreement on the issues above, and that agreement can then form the basis for a separation agreement. Mediation is particularly useful where there are children of the marriage: children are upset by the thought of their parents separating, and that sense of loss is magnified by conflict between the parents. Where parents resolve their differences by mediation they usually reach more child-centred decisions, and find it easier to continue parenting together while living apart.

Separation agreement

A deed of separation is a document drawn up and executed by the parties to a marriage that has broken down, where they do not wish to go to court to agree the terms. It contains a clause agreeing to live apart, and then makes provision for custody, access to children, maintenance, division of property and Succession Act rights. It is a legally binding document, signed by both parties in the presence of their respective solicitors.

Judicial separation

Where the parties cannot agree, the Judicial Separation and Family Law Reform Act 1989 sets out six grounds on which the court may grant a decree of judicial separation. One or more must be proved on the balance of probabilities:

1. The respondent has committed adultery.
2. The respondent has behaved in such a way that the applicant cannot reasonably be expected to live with them.
3. The respondent has deserted the applicant for a continuous period of at least one year immediately before the application.
4. The spouses have lived apart for a continuous period of at least one year immediately before the application, and the respondent consents to a decree being granted.
5. The spouses have lived apart for a continuous period of at least three years immediately before the application.
6. The marriage has broken down to the extent that the court is satisfied a normal marital relationship has not existed between the spouses for at least one year immediately before the application.

Divorce

Divorce has been available in Ireland since 1997. Before the court can grant a decree, the parties must have lived apart for the period set out in law, there must be no reasonable prospect of reconciliation, and proper provision must have been or will be made for the spouse and any dependent members of the family. On application, the court can make orders dealing with access, custody, maintenance, division of property, succession rights and pension adjustment.

Maintenance

A maintenance order compels a spouse to make periodic payments to the other, in the amount and at the times the court directs. Where parties are married or have been married, they can apply for maintenance for themselves and for the dependent children of the marriage. Where parties are not married to one another, maintenance can only be applied for in respect of the dependent children. The court looks at the income and earning capacity of the applicant, the net income of the respondent, and the financial resources of both parties.

Guardianship, custody and access

Guardianship

The rights and duties of parents in respect of the upbringing of their children. It includes the duty to maintain and properly care for the child and covers the decisions that must be made throughout the child's life about their general lifestyle and development. Guardianship can be obtained by consent or by court order.

Custody

The right of a parent to exercise physical care and control over the day-to-day upbringing of their child.

Access

The court considers an application for access on the basis that the best interests of the child are of paramount importance. A right of access is ultimately a right of the child.

The Children and Family Relationships Act 2015 made significant changes here. In any decision on guardianship, custody or access the court must take account of the best interests of the child and must have regard to the importance of hearing the voice of the child. The Act defines the rights and responsibilities of a guardian, provides automatic guardianship for certain unmarried fathers, and allows people who are not parents to apply for guardianship.

Nullity

Nullity of marriage is a declaration by a court that a marriage is null and void and that no valid marriage is deemed to exist. It differs from divorce, which brings a valid marriage to an end. There are two categories: a void marriage is treated as if it never took place, while a voidable marriage is treated as valid until a decree of annulment is made. A decree can only be made where one of the parties applies to the court.

How we work

We are committed to a sensitive and confidential service, and our primary objective is to deal with family law matters as quickly and amicably as possible. Our preferred course of action is mindful negotiation and settlement. Where possible, and particularly where children are concerned, it is important that both parties keep the lines of communication open.

Support outside the legal process

A relationship breakdown affects children, and their needs are very often not catered for. There are useful resources available to parents who want outside assistance: