Marriage Breakdown

Marriage breakup can be a stressful time for all parties involved as it affects every aspect of a persons life. The Family Law Team at Paul Tracey Solicitors led by Piarais Neary Solicitor can provide practical legal advice and assistance in regard to the issues such as the family home, the children, other properties, pensions, debt, financial and taxation implications.

If you are considering going through a separation or If your marriage has broken down we at Paul Tracey Solicitors can advise you in regard to these matters, there are 4 ways in which a separation can be affected;

Separation Agreement; parties can agree to separate in this manner at any stage immediately after they agree that the marriage has broken down.
Judicial Separation, Parties may issue Judical Separation Proceedings through the Circuit or High Court if one of the following criteria can be met;
- 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 live 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.
Divorce, Parties may issue Divorce Proceedings through the Circuit or High Court if the following criteria can be met;
- 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.
- There must be no reasonable prospect of reconciliation.
Nullity; this is where the court makes an order that the marriage never existed due to the fact that certain requirements for the purposes of a valid marriage were never met.

Separation Agreement

Parties can agree to separate in this manner at any stage immediately after they agree that the marriage has broken down.
This will only work if both parties can reach agreement in regard to the following;

The division of Family Home;
Guardianship & Custody,
Access to the children;
Division of Other Property;
Maintenance;
Sucession Rights
Pension;
Full and Final Settlement towards a Dviorce.

It is recommended, but not required that the parties should contact an independent mediator (http://www.fsa.ie/familymediation/contents.html) to agree the above heads of agreement and then the heads of agreement should be sent to your solicitor in order for the agreement to be translated into a legally binding contract.
This form of separation will only work if both parties are willing to go through the process together, one spouse cannot force or compel another spouse to go through this form of separation, if one spouse refuses to go agree to a separation agreement then one must see if they would qualify for a Judicial Separation or a Divorce.

Remedy in case of a breach of a term of the agreement

It is further recommended but not required that a legal separation should be ruled on by the court if the agreement contains a provision regarding a maintenance payment or if the agreement relates to the disposal of any property. This provides a safe guard in the event of a breach of the term of the agreement either party has a remedy to re-enter the matter before the court and seek the courts direction in regard to the breach a term of the agreement. This will add additional cost to the separation agreement but is worthwhile from a resolution point of view in case of a breach of a term.

If the separation agreement is not ruled on in court the remedy for a breach of an agreement is by way of specific performance of the contract through equity and this would mean additional expense in that specific performance proceedings would have to be drafted in order to get the matter before the court which would cost more than if one had initially had the agreement ruled on when the agreement was initially finalised.

In order to give you an idea as to what one has to consider when going through a separation; . Please choose from the items below so that we can outline for you what one has to consider

Parties with Children

Property.

The division of the family can be negotiated in one of three ways if there are dependent children (insert definition).

One spouse buys other the other spouse interest in the family home; the spouse taking primary day to day control of the children should remain in the family home if possible as this will avoid unnecessary further disturbance for the children, the parties should see if it is finacially possible for one spouse to buy out the other from their interest in the home, in term so the percentage that the party should get for their interest will depend on a number of factors including but exclusive to the cost of re-housing the departing souse, the ability for the remaining spouse to raise a mortgage. If there is a mortgage on the property the banks consent will be required in order for one spouse to take over the existing mortgage. When you are considering a division of the property both parties should contact their bank to ascertain what they can obtain by way of re-mortgage or by way of a mortgage for a new property.
The family home remains in the joint parties names until the children are no longer dependent(insert def) and then the family home is sold and the proceeds of sale after legal and auctioneering fees are spilt accordingly to what is agreed.
Sale of the family home; where there are young children of the parties this should try and be avoided, but if there is no other option the parties should consider the sale of the family in circumstances where there could be enough proceeds after sale for a new house to be purchased for the spouse taking primary care and control of the children and for the spouse moving out. The parties will have to consider that due there will be a reduction in the standard of living as a result of this.

In regard to other properties that the spouses may own regard should be had as to whether the spouse leaving home could take over one of these property and that in consideration of this that there be a reduction that the departing spouse should receive in regard to a buy out of their interest on the family home.
If it is not financially possible due to a negative equity situation in the ownership of property regard can be had to the parties to continue to hold the propertys as they are and when they are qualified for a Divorce that the property market could have bounced back and that there could be an increase in the value of the property passed the original sale that would warrant a practical sale of teh property.

1.b. Maintenance

It is open to either spouse to seek maintenance from each other for themselves and for the children. In order to ascertain the level of maintenance to be paid the parties should complete a statement or affidavit of means which sets out their income, debts and outgoings so that in negotiation the spouses can accurately determine what they require in terms of maintenance for themselves and for the children, the breadwinner in the family would normally be the spouse leaving the family home as their day to day is taken up with work, the breadwinner will also have to factor in the cost of taking up a new mortgage, if this is not a possibility what is the cost of renting a property with the additional costs of living on ones own and the expenses that that would incur.

In most circumstances the spouses will have to accept that there will be a reduction in the standard of living that they were used to. There is no scale or set figure as to what amount of maintenance one should pay it is entirely dependent on the needs of the family having regard to what the income of the family is. Consideration should also be given as to whether the spouse who has day to day control of the children could get part-time work to alleviate some of the financial burden on the family, if the children are in full time education and there is time during the day for this.

1.b Access and Custody

In so far as possible the spouse should try and agree access between them and should at all time behave amicably towards each other, it is the childrens best interest s that the spouses work together on reaching an agreement for the benefit of the children.

Factors that the parties must consider are the working weekly arrangement vis a vis the spouse who has left the family home and the working commitment, access should also be agreed in regard to holidays and mid-term, Christmas and Easter holidays. Regarding custody, in most situations it would be agreed between the parties that they would have joint custody with primary care and control of the day to day care of the children to one parent.

If access cannot be agreed between the spouses, a mediator or the spouses respective solicitors should be able to reach agreement

In the alternative where access cannot be agreed one may apply to their local district court for the issue to be determined by way of an access summons, this would normally occur where the parties have been unable to reach agreement by way of a separation agreement and that an interim measure is required before the Spouses go through a Judicial Separation or a Divorce.

Pension

1.a Pension

1.a Debt

The debts of the parties will need to be considered as to who accumulated what debt, in the currect situation of the parties are in negative equity the parties maybe forced to remin on the mortgage of the family home by the bank, one would hope that by the time that the parties would be able to get a divorce that the economic circumstances of the parties would have changed in roder to affect a braek from the debts

1.a Full and Final Settlement.

The agreement should be in full and final settlement towards a Divorce and the parties should agree that the terms reached should be ruled on as a Divorce when the parties qualify. In order to ensure that a fair an amicable agreement has been reached both parties should provide full disclosure in their affidavit of means, often one spouse may at the time of a Divorce apply to re-open matters on the basis that their was not full disclosure at the time of the separation agreement and that the settlement in the separation does not adequately provide for a spouse, a Judge at the time of a Divorce must among other matters be satisfied that there is adequate provision made for both spouses from the separation agreement.

Parties married but no Children, property, employment

If there are no children in the relationship it can make the separation of the parties easier in terms of the division of the assets of the parties.

1.a Property

The family home; the family home can agree to be sold, or the parties should investigate if one spouse can afford to buy the other spouse from out from their interest in the family home
Other investment properties, consideration must be given as to whether these properties should be sold and a split agreed between the parties or could one spouse transfer to the other spouse the interest in the property in order to seek to reduce the amount payable if a buy out is to occur from the family home.

1.a Maintenace

Either spouse can seek maintenance from the other, if maintenance is an issue between the parties, in order to assess the level of maintenance, both parties should fill out a statement of means or affidavit of means setting out their income, debts, and outgoings so that the parties can amicably agree a reasonable figure in regard to maintenance.

Maintenance is always a live issue even after parties get Divorced, under the current laws in this jurisdiction it is open to either party to seek maintenance from the other until such time as an applying spouse gets remarried.

1.a Pension

Either spouse can look for a portion of a pension or the parties can agree that neither party will have any interest in either parties pension, the trustees of a pension scheme require an order from the Court in order to enforce the agreed terms in regard to the pension. Parties will often agree the portion of a pension in the separation but not get the formal order until such time as one gets divorced, this will save additional cost but the trustees of the Pension Scheme can only act on a Court Order to reflect the parties intentions in the separation agreement. If a Pension Adjustment Order is required, the parties cannot execute the Separation Agreement and would need to issue Judicial Separation proceedings in order to get the Pension Adjustment order from the Court.

1.a Full and Final Settlement.

Judicial Seperation

If spouses cannot agree to go through a separation agreement and remember one cannot force another party to enter a separation agreement one spouse may initiate a separation through a Judicial Separation, in order to be able to issue judicial separation proceedings one of the following criteria must be met;

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 live 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.

The Judicial Separation process tends to be a longer process and more expensive to go through than a Separation Agreement.

Commencement of Proceedings

One Spouse would instruct a Solicitor to issue proceedings in the Circuit Court Proceedings are commenced by way of a Family Law Civil Bill. The Civil Bill Sets out what the Applicant Spouse is seeking from the Judicial Separation.

The Spouse that receives the proceedings is known as the Respondent and is required to enter an Appearance and a short time thereafter enter a reply to the Family Law Civil Bill in regard to what the Respondent Spouse is seeking, this is known as a Defence.

The Court has wide and varied powers in regard to what orders can be made at a Judicial Separation hearing, in our experience at Paul W Tracey Solicitors the Court has regard to the following headings;

Factors to be considered for parties going through a judicial separation;

The division of Family Home;
Guardianship & Custody,
Access to the children;
Division of Other Property;
Maintenance;
Sucession Rights
Pension;
Full and Final Settlement towards a Dviorce.

Property

The family home; the court can order that the family home can be sold and the proceeds of sale divided between the parties as the Court deems fit.
The court can order that one spouse remains on in the house if the spouse remaining in the family home can afford to buy out the leaving spouses interest in the family home. The Court will have regard to the global financial picture of the parties and investigate what is fair in the circumstances in that is it possible to leave one party in the family home and give the leaving spouse other assets from the parties pool of assets in lieu of their interest in the family home.
Other investment properties, consideration must be given if these properties were purchased prior to the marriage, if the properties were and the parties have only been married a short time it would not be fair that one spouse should unfairly claim an interest in such a property that was purchased prior to the marriage, the longer one is married for at the time of a breakup the less one can try and claim that it would be unfair for a spouse to claim an interest in such a property.

Maintenance

Through Judicial Separation Proceedings it is open to either spouse either spouse to seek maintenance from the other, in order for a court to assess the amount of maintenance, the Judge will have regard to both parties affidavits of means in order to assess what is the appropriate amount of maintenance to be paid, the judge will try and seek a balance as to what one spouse requires and what one spouse can afford to pay.

Please note that maintenance is always a live issue even after parties get Divorced, under the current laws in this jurisdiction it is open to either party to seek maintenance from the other or amend a maintenance order even after the parties have been separated or divorced

Pension

Debt

The debts of the parties will need to be considered as to who accumulated what debt, in the current climate some parties are in negative equity the parties maybe forced to remain on the mortgage of the family home by the bank, one would hope that by the time that the parties would be able to get a divorce that the economic circumstances of the parties would have changed in order to affect a break from the debts

Divorce

Parties may issue Divorce Proceedings through the Circuit or High Court if the following criteria can be met;

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.
There must be no reasonable prospect of reconciliation.

1.b Factors that one must Consider when going through a Divorce;

The division of Family Home;
Guardianship & Custody,
Access to the children;
Division of Other Property;
Maintenance;
Sucession Rights
Pension;
Full and Final Settlement.

Commencement of Proceedings

The Court has wide and varied powers in regard to what orders can be made at a Divorce hearing, in our experience at Paul W Tracey Solicitors the Court has regard to the following headings;

The division of Family Home on Divorce

Sale: The Court may order the Sale of the Family Home and divise a spilt on what it considers fair in the parties Circumstances.

Transfer: The Court May order the transfer of the family home to one spouse, when doing so the Court will have regard to the financial situations of the parties and investigate if there is another investment property or asset that could be transferred to the Spouse who is coming off the title of the family home in lieu of their interest in the family home.

Buy Out; It can be put to the Court that one Spouse is in a position to buy out the other Spouses interest in the Family Home.

Sale upon the Children being No longer Dependent; The Court may order that the family home remain the parties joint names until such time as the children of the parties are no longer Dependent., the Court can also determine the appropriate split of the family home upon the happening of this event.

Obviously the Court will have to have regard to the individual circumstances of the parties and the ages of the Children when considering what option is best for the parties.

Investment Properties

Sale: The Court may order the Sale of the Properties and devise a spilt on what it considers fair in the parties Circumstances.

Transfer: The Court May order the transfer of the property to one spouse, this could be in lieu of their interest in the family home.

Access and Custody

The Court will try in so far as possible create a workable arrangement between the parties, to reflect Weekly, Holiday and Birthday access. The parties should at all times behave amicably towards each other, it is the childrens best interests that the spouses work together on reaching an agreement for the benefit of the children.
Factors that the parties must consider are the working weekly arrangement vis a vis the spouse who has left the family home and the working commitment, access should also be agreed in regard to holidays and mid-term, Christmas and Easter holidays.

Maintenance

There is no formula for calculating maintenance and each case is considered on its own facts having regard to the parties global financial picture.

Either spouse can seek maintenance from the other, if maintenance is an issue between the parties, in order to assess the level of maintenance, both parties should fill out a statement of means or affidavit of means (insert form) setting out their income, debts, and outgoings so that the parties can amicably agree a reasonable figure in regard to maintenance.

The Court will consider what is the appropriate level of maintenance for one party to pay having regard to the global financial picture of the parties, the Court is concerned with what one party requires vis a vis what one spouse can afford to pay.

The Court can make the following types of orders in regard to maintenance

a) Periodical Payments, i.e. weekly or monthly maintenance for a spouse or a dependent child.
b) Lump Sum payment, in respect of a spouse of a dependent child.

Maintenance is always a live issue even after parties get Divorced, under the current laws in this jurisdiction it is open to either party to seek maintenance from the other until such time as an applying spouse gets remarried.

Variation of Maintenance

It is open to either party to apply to court to seek a reduction or increase in regard to the amount one is paying or receiving if there is a change of circumstances of the parties The applying party would have to show the court that their means have changed and that they need to reduce the amount being paid or justify an increase. Call to action

Succession Rights

Succession rights pertain to the share that one spouse is entitled to upon the death of the other spouse pursuant to the Succession Act 1965.

The Court can make orders extinguishing the share to which either spouse would have been entitled in the estate of the other spouse. The Court will consider if such an order is appropriate or could have serious consequences to one spouses future financial security.

Pension

Either spouse can look for a portion of a pension, the Court may make orders dividing a pension in terms that it deems fit. The trustees of a pension scheme require an order from the Court in order to enforce the agreed terms in regard to the pension. A Pension Adjustment Order is required from the Court in order to direct the trustees of a Pension Scheme to change the intention of the particulars of the scheme.

Nullity

Nullity; this is where the court makes an order that the marriage never existed due to the fact that certain requirements for the purposes of a valid marriage were never met.

Essentially the Court Declares the marriage never took place in the first place and the parties are free to remarry and that neither spouse can look for financial or other relief that would normally be available through a Divorce or a Judicial Separation;

In order for a Court to declare a Nullity, the Court must be satisfied that one of the following grounds could be met;

non-observance of formalities;
- At least 3 months notice is required in writing to the Registrar of Marriages of an intention to marry unless a judicial exemption has been obtained.
lack of capacity
- Either party is already married
- The parties are of the same sex
- The parties are within the prohibited degrees of relationship
- Either party is under 18 years of age and they have not obtained a judicial exemption prior to the marriage.
lack of consent
- Mental Incapacity
- Intoxication
- Fraud, Mistake and Misrepresentation
- Duress and undue influence, a party to a marriage must marry of their own free will and not under a threat or outside pressure from another party.
- Limited purpose marriage, parties only marry for taxation or citizenship advantages.
Impotence
An inability to have sexual intercourse or to consummate the marriage.
Inability to Enter and sustain normal marital relationship.
- Through illness one lacked the capacity to form a caring or considerate relationship,
- One is insane or suffers from a serious mental illness at the time of the marriage
- One of the parties is a homosexual at the time of the marriage and therefore lacks the capacity to sustain a normal marital relationship.

It is up to the Court to decide if grounds for Nullity exist upon hearing evidence from the spouses, the parties cannot agree between themselves a Nullity exists in the same way in which parties can agree terms for a Judicial Separation or Divorce. The Court will often look for medical evidence from independently appointed doctors to verify the grounds for a nullity before the Court.