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The breakdown of a relationship is a hugely significant & traumatic event and the parties need clear competent and independent legal advice on their rights and entitlements and options open to them in assisting them reach a solution as to how the parties will live apart.
When a marriage breaks down the couple have a number of different options open to them in regulating how they will live separate and apart. Solicitors also have an obligation to discuss with their client the possibility of reconciling with their spouse.
If a married couple can reach agreement on the terms upon which they will live separately then the parties can sign a Separation Agreement or Deed of Separation, which is in fact a legally binding contract which the parties enter into. The terms of the agreement may be reached by the couple themselves, or through the assistance of a mediator or their respective solicitors can negotiate terms on their behalf. Each party requires separate legal representation.
Aside from an agreement to live separate and apart, the main issues to be dealt with are
•custody and access to children;
•maintenance for the spouse or children;
•what is to happen to the family home and any other property, who will reside in it, who will pay the mortgage and bills or whether it or any other property will be sold and how the proceeds will be divided;
•liability for debts and
•Pension entitlements. The Trustees will not be bound by the terms in the Agreement and a Court Order will be required. This Order can be made at a later stage when either party seek a Decree of Divorce and the terms in the Agreement will be reviewed as a statement of the parties’ intention.
If the parties cannot agree the terms of a Separation Agreement then an application will have to be made to the Family Court for a Decree of Judicial Separation, In most cases the application will be made to the Circuit Family Court. There are specific grounds upon which a party can make an application and it will deal with the same issues as would normally be dealt with by way of a Separation Agreement.
In Ireland parties can apply for a Decree of Divorce where they meet the following conditions:
•They have been living separate and apart for a minimum period of four years during the previous five year before the application is made;
•There must be no prospect of the parties reconciling and
•Proper arrangements must have been made for the other spouse and children.
If the parties satisfy these conditions then an application can be made and the Court will grant a Decree dissolving the marriage thus enabling both parties to remarry. If the parties have signed a Separation Agreement or have a Decree of Judicial Separation then the terms of the Agreement or the earlier Court Order will be advised to the Judge. Subsequent to the granting of a Decree of Divorce either party can apply to Court to review maintenance.
A Decree of Nullity can be made by the Family Court upon application by either party on specific grounds. The effect of the Decree is that the marriage is null and void and in effect that the marriage never took place. There are specific consequences of such a decree being granted with regard to property rights and entitlements but the Decree will not affect the status of any child of that relationship.
If an unmarried couple split up they do not have the same legal rights and entitlements as a married couple and the client will be advised on the options open to them.
If both parties’ names are not on the title of the property then in the absence of an agreement with their partner, an application will have to be made to Court to establish what their ownership rights are. They will have to show what contributions they made to the purchase of the house or the contributions to repaying the mortgage.
If you are a guardian of a child you have the right to make certain decisions regarding the child to include the issue of a passport, and decisions regarding the child’s upbringing, -education, religion and health issues.
In a marital situation the parents of a child are the joint guardians but where children are born outside a marriage then the mother is the sole guardian. The father can become a joint guardian by
•The signing of a Statutory Declaration. This Declaration is signed by both parents in the presence of a Peace Commissioner or Solicitor; or
•If the mother refuses to sign the Declaration then the father can apply though the District Family Court for an Order appointing him as a joint guardian. The mother will be on notice of the application and can indicate her position to the Court.
•If the parents of a child marry after the birth, then the father will automatically become a joint guardian.
CUSTODY AND ACCESS
Custody refers to the day to day upbringing of the child and in circumstances where a relationship breaks down one parent will usually have custody of the child with the other party having access or a right to see the child at specific times. In non-marital situations where the parties cannot reach agreement on access then an application can be made for a Court Order. The Courts will at all times consider what is in the best interest of the child.
In a non-marital situation the other party has no obligation in law to maintain their partner but there is an obligation to pay maintenance for a child that is dependent. If agreement cannot be reached between the parties then an application to Court for a Maintenance Order can be made. A child is considered dependent where it is
•under the age of 18 years or
•up to the age of 23 if in full time education or
•where the child has a permanent disability then the obligation is for life.
In cases of physical violence or psychological abuse, a person can seek the protection of a Court Order and there are different grounds for married and non-married applicants. A party can seek the Order on their behalf or on behalf of a child. The Gardai have powers to arrest and prosecute persons who breach the terms of a Barring or Safety Order. The two main kinds of protection are
This Order will require the person to leave the property for a specified period of time.
This Order will not force the other party out of the home but will prohibit the abuser from perpetrating further acts of violence or threats of violence.
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