Family

When a marriage breaks down, not only is it a difficult time emotionally for the couple and the children, there are also many complicated practical and legal issues to be discussed, negotiated and resolved. Marital breakdown affects all areas of a person' s life, and while many couples initially informally separate and live apart, most people go on to regulate matters between them in a legal context.

The main options available to a couple on the breakdown of a marriage are:

• Counselling
• Mediated Agreement
• Collaborative Family Law
• Separation Agreement
• Judicial Separation
• Divorce
• Nullity

There are also other issues which arise often arise between a couple on the breakdown of a relationship such as

• Maintenance
• Custody & Access
• Guardianship
• The Family Home
• Domestic Violence

Where difficulties have arisen in a relationship counselling may assist a couple in finding a way to resolve their problems and ultimately to reconcile. Where the relationship has irretrievably broken down counselling can assist a couple in working through the emotional impact of the marriage breakdown and can assist them in expressing their feelings so that over time they are able to separate as amicably as possible.

Relationship counsellors hear both sides of the story and do not take sides or act judgmentally. Their role is to provide a space for the couple to talk, listen and be heard. There are many organisations which provide relationship counselling, both on a voluntary and fee paying basis.[Back to top]

A mediated agreement is an agreement reached between the couples who have decided to separate with the help of a trained mediator and will generally address important issues such as custody of and access to children, maintenance for either spouse and for the children and the division of property and other assets.

The role of the mediator is not to give legal advice or to decide on issues between the couple but rather to encourage and assist the separating couple to work out mutually acceptable arrangements. Couples who engage in mediation should also obtain legal and financial advice before attending mediation so they can make informed decisions in relation to the mediation agreement; however a mediated agreement is not generally legally binding. If agreement is reached, the mediator will draw up the terms of the agreement, which is signed by both parties. A person wishing to make a mediated agreement legally binding should then consult a solicitor who can draw up a legal Separation Agreement based on the mediated agreement.

Mediation is confidential and communications with a Mediator will generally not be admissible if agreement is not reached and there are subsequent court proceedings.

The Family Mediation Service offers a mediation service free of charge or a couple may choose to engage a private mediator. A list of accredited private mediators may be obtained from the Mediators Institute Ireland . [Back to top]

Collaborative family law is an approach to resolving family law issues which is designed to achieve a fair and equitable agreement based on realistic aspirations through discussions, negotiations and reasoned judgment and both parties are advised and represented by their solicitors through out the process. The ultimate aim is to avoid conflict in family law disputes and to provide sustainable and comprehensive solutions to separating couples and their families and to eliminate , or at least minimise, the negative consequences of protracted litigation for the couple and their children.

The process is one where all parties agree to partake in constructive non-confrontational discussions and negotiations which focus on the future well-being of the couple and any children of the family. Negotiations take place in four- way meetings with both solicitors and parties working together. You also meet with your solicitor individually to receive legal advice. The solicitor's role is to guide and advise the parties towards a reasonable resolution. While the legal advice is an integral part of the process, all of the decisions are made by the parties. Conflict resolution, and an outcome that is satisfactory for both parties and their families, is the objective. Once issues are agreed, the solicitors then complete the paperwork, for example, the Deed of Separation or the Terms of Consent to be ruled in the context of a Judicial Separation or a Divorce.

If the process needs to be postponed for any reason, there is the possibility of seeking outside assistance by way of further professionals such as counsellors, accountants, auctioneers or arbitrators and the process can be suspended to facilitate such intervention.

If no overall agreement is reached or if either part y decides to withdraw from the collaborative process, the collaborative process ends, the solicitor's fees are paid and both collaborative lawyers are disqualified from acting for either party in the context of contested family law proceedings. [Back to top]

A Separation Agreement is a legally binding contract that is negotiated between the two spouses which sets out their future rights and duties to each other.

A Separation Agreement can deal with matters such as:

• A couple's agreement to live apart
• Agreed arrangements in relation to custody and access to children
• The occupation and ownership of the family home and any other property
• Maintenance and any lump sum payments
• Indemnity from the debts of the other spouse
• Taxation
• Succession Rights .

Once both parties have agreed to all the terms, the actual document that is drawn up and signed by both parties is often called a "Deed of Separation". Once signed both spouses are legally are bound by the terms of the agreement and a Separation Agreement should never be signed without both parties taking independent legal advice.

When the agreement is signed, it can be made a rule of court by application to the court. This ensures that all the terms agreed upon regarding the children can be legally enforced where covered by appropriate legislation.

If agreement can be reached reasonably quickly between the parties and a Separation Agreement drawn up, it is less costly and also less stressful than court proceedings. . Many couples formalise their separation in this way.

Signing a Deed of Separation does not give either party the right to remarry. [Back to top]

If agreement can not be reached on the terms of a separation agreement, or if matters arise (such as the adjustment of rules of one parties pension scheme) which can not be dealt with by agreement, either spouse may apply to the Court for a judicial separation.

When applying for judicial separation the person applying must state the grounds (reasons) relied upon in seeking the separation which must be least one of the following:

• One spouse has committed adultery;
• One spouse has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them;
• One spouse has deserted the other for at least one year at the time of the application for a separation;
• The spouses have lived apart from one another for one year up to the time of the application for separation, and both spouses agree to the separation decree being granted;
• The spouses have lived apart from one another for at least three years up to the time of application for a separation (whether or not the spouses agree to the separation);
• That a normal marital relationship has not existed between the spouses for at least one year before the date of application for a separation;

Prior to granting a decree of judicial separation the court will take many factors into account such as present and future financial circumstances, living arrangements and property, children and their future needs and welfare, succession rights and pension rights to name a few.

All applications for judicial separations are heard by the Circuit or High Court and hearings are held in private. On granting a decree of judicial separation the court may make orders dealing with a number of additional matters including, care and custody of children, maintenance and other financial provisions and the division of property.

A decree of judicial separation does not give you the right to remarry. [Back to top]

Where the Spouses to a marriage have been living apart from each other for four years prior to the beginning of proceedings, either spouse may issue proceedings for divorce.

Once a divorce decree is granted by the court the marriage has ended and both spouses are then free to remarry.

In order to obtain a divorce decree, each of the following conditions must be met:

(a) The spouses must have been living apart for four out of the previous five years.
(b) There must be no reasonable prospect of a marital reconciliation.
(c) There must be arrangements in place for the welfare of the spouse and or dependent children.

As with judicial separation proceedings may by heard by the Circuit or the High Court, hearings are held in private and on granting a decree of divorce the court may make orders dealing with a number of additional matters including, care and custody of children, maintenance and other financial provisions and the division of property.

In any application for a Decree of divorce, the court can review any previous arrangements made by the parties such as a Separation Agreement, particularly if the circumstances of either party has changed.

When a Decree of Divorce is granted, it cannot be reversed. Either party can apply to court to have any orders made under the Decree - such as maintenance - reviewed by the court. [Back to top]

Nullity of marriage is a declaration by a court that that no valid marriage exists between you and your partner and your supposed marriage is treated as though it never took place and is regarded as null and void. Nullity differs from divorce, as rather then ending a valid marriage, a declaration of nullity is a declaration that a valid marriage never existed.

Nullity law, specifies two types of marriages that may be annulled , a void marriage and a voidable marriage.

A void marriage is regarded as never having taken place. Technically, if your marriage never took place, then there is no need to go to court to obtain a decree of annulment - you may simply act as though the marriage never happened. However, it is advisable to obtain a court order declaring that your marriage is annulled in order to remove any doubt.

For a marriage to be void one of the following must apply:

• At the time of the marriage ceremony there was a lack of capacity. In other words, either you or your spouse were incapable of entering into a binding contract. This may happen where one of you was already validly married, where you are too closely related to each other or where you are of the same biological sex.
• The formal requirements for a marriage ceremony were not followed. For example, you did not give due notice to the Registrar of Marriages .
• At the time of the marriage, there was a lack of consent. In other words, you or your spouse did not give free and fully informed consent to the marriage. This may be due to duress, (i.e., you were forced into the marriage), mistake, misrepresentation or fraud. It may also be due to the fact that you or your spouse was suffering from a mental illness or was intoxicated at the time of the marriage.

In contrast a voidable marriage is considered to be a valid marriage until a decree of annulment is made. To prove to the court that your marriage is "voidable", you must show one of the following grounds:

• At the time of the marriage ceremony, either party was impotent. You must show that either you or your spouse was unable to consummate the marriage. You cannot obtain a declaration of nullity because one of you is infertile or because one of you is simply refusing to consummate the marriage. It must be the case that one of you is incapable of sexual intercourse.
• At the time of the marriage ceremony, either party was incapable of entering into and sustaining a proper or normal marriage relationship. This may be due to a psychiatric illness or personality disorder. It may also be due to the sexual orientation of one of the parties. For example, if you discover after you marry that your spouse is homosexual, the court may grant you an annulment.

A decree of annulment can only be made if one of the parties to the marriage applies to the court for a nullity. If the court decides that your marriage is voidable, it will then declare that your marriage was invalid from the start.

The most obvious consequence of a court declaration of nullity is that as your marriage never existed you are now entitled to marry. In order to obtain an annulment of your alleged marriage in Ireland , you must make an application to the Circuit Court or the High Court .

It is important to be aware that a civil annulment of a marriage is not the same as a church annulment. A church annulment does not have any legal effect and does not mean that you may legally remarry - although it may mean that you can remarry in the eyes of the church. [Back to top]

There is a general duty on spouses in Ireland to maintain each other and their children. On the breakdown of a non-marital relationship neither party may seek personal maintenance, however, if you have had a child outside of marriage, you may apply to the court to order the other parent to pay maintenance for the support of that child. In most cases, it is the parent with main custody of the child that makes such an application.

On the breakdown of the marriage or a relationship you and your ex-partner may, agree on the sums to be paid. If no agreement can be reached an application may be made to court for an order directing payments to be made in such amount and frequency as the court may direct. An application may be made by a spouse for personal maintenance or by the parent of a dependant child, whether or not the child is born inside marriage A dependant child is one who

• Is under the age of 18 or
• Is over 18 and under 23 years old but is still in full-time education or
• Is suffering from mental or physical disability to the extent that he or she cannot maintain himself or herself.

If the court decides that a spouse or parent of a dependent child has failed to provide such maintenance for the child as "is proper in the circumstances", it may make an order that that person make periodical maintenance payments to support the spouse or child. The court may also order a parent to pay a lump sum.

In deciding whether to make a maintenance order the court must have regard to all the circumstances of the case but in particular must have regard to the income and earning capacity, property and other financial resources of both parties. It will also consider whether either party has other financial responsibilities such as a spouse or other dependent children. Each party to the proceedings is required to provide such details of his or her property and income as may be reasonably required for the purpose of the proceedings.

Applications for maintenance orders of up of €500 per week per spouse and €150 per week per child may be made to the District Court. Applications for amounts above this level are made to the Circuit Court. [Back to top]

Custody is the right to the day to day care and control of a child. For a child born outside marriage the mother has sole custody of the child while married parents are the joint custodians of their children. When the parents of a child in Ireland separate and they cannot agree on who should have custody of the child, an application may be made to court to decide who will have custody.

A right of access to a child means you have the right to spend time with your child for specified periods of time which may include staying overnight with you on specified days or residing with you for certain periods. Access may also be granted to allow a child go on holidays with you.

Who decides on the custody of and access with children.

When the parents of a child are in a relationship the issues of custody and access do not normally arise, however when parents are no longer in a relationship and the issue of with which parent that child will resides and what access the non- resident parent will have with that child can be a contentious.

Parents are free to agree access arrangements between themselves, and organisations such as The Family Mediation Service can assist parents who have separated to negotiate an agreement in relation to access. If agreement can not be reached in relation to access rights, an application may be made to the courts.

Where parents agree it is also possible to agree to share custody on an informal basis and any agreement in writing between parents relating to custody or access can be made a rule of court and if the agreement is breached the same sanctions apply as if it was a court order. However without applying to have an agreement made a rule of court, unmarried parents can not legally agree to appoint the father as a joint custodian and if a father wishes to be appointed as a joint custodian, even where the mother agrees to this appointment an application must be made to the court.

As with all applications to the court concerning children decisions by the court in relation to custody and access will be decide on the basis of the best interest of the child,. The welfare of the child will be the most important factor. Welfare includes the child's religious, moral, intellectual, physical and social welfare.

By law, an unmarried mother is the sole guardian of a child born outside of marriage unless the father has been made joint guardian by the completion of a statutory declaration or on application to the court. A father does not need to be a guardian of a child before applying for custody or access. The court may decide that either parent should be awarded sole custody of the child or may decide that the parents should become (or for married couples remain) joint custodians of the children. In general, the courts tend to consider that where the parents of the child are unmarried, it is in the child's best interests to live with its mother and the mother will usually be granted custody . However the courts also consider that it is very important for the welfare of a child that it should have a relationship with both its parents and the courts will usually grant a right of access to the non-custodial parent so that they can have regular contact with the child. When making its decision the court may set the time, place and duration of such access.

While a non custodial parent will rarely be refused access with their child in some circumstance for example if the they have spent limited time with the child prior to the access application, the court may decide that while access should take place it is appropriate that a third party supervises the access. .

If the court decides that joint custody of the child is appropriate they may decide that primary care and control should be with one parent.

If the unmarried mother does not want custody of the child and intends placing it or has already placed it for adoption, the unmarried father may still apply for custody of the child.

A father may apply for  access and/or custody whether or not he is named on the child's birth certificate and whether or not he is a guardian of the child. If a father also wishes to apply for guardianship it is possible to issue applications for guardianship, access/and or custody to be heard by the court at the same time, although a separate application must be made in respect of each.

Does anyone other then a natural parent have a right of access

Under the Children Act 1997 any person related to a child by blood or adoption, such as grandparents, or where a person has acted in loco parentis, may apply to the court for access. For anyone other than a parent an application must first be made to the court for permission to apply for access and this application may be made by contacting your local District Court office who will assist you in issuing the application. [Back to top]

In Ireland a guardian of a child has a duty to maintain and properly care for the child

and has the right to make decisions on matters affecting the upbringing of the child, such as, medical treatment, educational and religious matters and decisions about leaving the country. The rights of parents to guardianship are set down in Section 6 of the Guardianship of Infants Act, 1964 .

For children born in Ireland married parents of a child are automatically joint-guardians of that child. For children born outside of marriage, only the mother is automatically the guardian of that child unless the parents of a child subsequently marry each other after the birth, when the father automatically becomes a joint guardian of the child. Registering the father's name on a child's birth certificate does not make him a guardian of that child.

How can the father of a child born outside marriage become a guardian of that child

Where the mother and the father of the child are in agreement to the father becoming a joint guardian and arrangements have been made in relation to custody and access the father can become a joint-guardian if both parents sign a statutory declaration in the presence of a Solicitor or a Peach Commissioner. A separate declaration must be made in respect of each child of whom the father is becoming a joint guardian. The wording required of the statutory declaration may be found on in Statutory Instrument S.I. No 5 of 1998. There is no requirement that this declaration be registered and it is important that the original declaration be retained in a safe place and that both parents keep a copy.

Where the mother does not agree that the father be appointed as joint guardian if the father wishes to become a guardian he must apply to the court to be appointed as a joint-guardian. A fathers name does not have to appear on the birth certificate to make an application for joint guardianship, however if the parentage is disputed DNA tests may be required by the court.

As in all matters concerning children, the decision of the court as to whether to grant the father an order appoint him as a joint guardian of the child will be decided by the court on the basis of whether it is in that child's best interest. In making its decision the court will consider the mother's views, however the fact that a mother does not consent to the guardianship application does not automatically mean that the court will refuse to appoint a father as a joint guardian.

What happens when a father is appointed joint guardian of a child

Where a father has been appointed a joint guardian of a child, whether by the completion of the appropriate statutory declaration or by the court then he has a right to a say in decisions concerning that child's upbringing and his consent is required for certain things relating to the child (for example, for passport applications for the child). If a guardians consent is required and agreement can not be reached by the childs joint guardians and application can be made to the court to make a decision on the basis of a child's best interests.

Once appointed a joint guardian a father's consent is required for the adoption of the child by another couple (or by the mother and her husband should she subsequently marry someone who is not the child's natural father). Where the father is joint guardian and the mother subsequently marries another man, the father will remain the joint guardian of his child.

Being appointed as a joint guardian of a child does not automatically give a father any entitlement to access with that child or a right to custody (day to day care) of that child. For information in relation to custody of and access with a child please see the fact sheets on custody and access.

Removal of guardianship rights

A father who has been appointed joint guardian by a court or by

statutory declaration may be removed from his position as joint guardian by court order. If a father consents to the adoption of his child he relinquished all legal rights in relation to his child, including his guardianship rights.

The only way a mother can give up her guardianship rights in Ireland , is if the child is placed for adoption.

Guardians and Wills

All parents who are guardians of a child are entitled to appoint by Will Testamentary guardians who will act as guardians on their behalf in the event of their death. For a mother who is a sole guardian of a child this is especially important however even when there are joint guardians the testament guardian and the child's surviving guardian will then act jointly. Before appointing a person as a testamentary guardian i t is strongly advised that you discuss this with them and that they give their consent to being named in your will as testamentary guardian. [Back to top]

The family home is a dwelling where a married couple ordinarily reside. The law provides that the family home may not be sold or mortgaged without the consent of both spouses. This applies regardless of which spouse owns the family home. The spouse who owns the family home may, however, transfer the family home into the joint names of both spouses or into the sole name of the other spouse
without having to pay stamp duty.

Where a court grants a judicial separation or divorce, it may make a number of orders affecting the family home or other property. [Back to top]

Under the Domestic Violence Act, 1996 , A court may grant protection by way of a barring and / or safety orders against a spouse or certain specified persons.

A safety order is an order of the court which prohibits the person against whom it is granted from using or threaten to use violence against, molesting or putting in fear the applicant or a dependent person . If the person against whom it is granted lives apart from you it prohibits them from watching or being near your home, however it does not oblige a person living with you to leave the home. A safety order may be granted against a person who:

• is the spouse of the person applying
• is not the spouse of the person applying but has lived with that person as husband or wife for a period of at least six months in aggregate during the period of twelve months immediately prior to the application for the safety order
• is over 18 and resides with the person applying in a relationship the basis of which is not primarily contractual
• A parent can apply for protection against domestic violence by their own child if the child is over 18
• barring order is an order which requires the person to leave the family home. A barring order may be granted against a person who:
• is the spouse of the person applying ,
• is not the spouse of the person applying but has lived with that person as husband or wife for a period of at least six months in aggregate during the period of twelve months immediately prior to the application for the safety order, or
• a child over 18 and resides with the parent applying

however if you are not married, you can get a barring order against a violent person if he/she does not own most or all of the house you are living in.

Barring and Safety orders are made where it is necessary to protect the welfare or safety of the other spouse / partner / dependent children and/or parent. To get a barring order or a safety order you must attend a District Court hearing. 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. These orders can be renewed by applying for a further order before the previous one has expired.