Contested Divorces
If a divorce applicant serves documents and the respondent (the applicant’s spouse) does not agree to the terms of the divorce, this is called a contested divorce case. In this scenario, it is essential to consult with an experienced divorce lawyer to minimise the possibility of a costly court case, and to increase the probability of reaching a fair settlement out of court.
How The Contested Divorce Process Works
The initial four main steps in seeking a divorce are the same in contested cases as they are in uncontested cases. The divorce becomes contested if, at step five below, the respondent completes a Defence Document, indicating they do not agree to the terms.
The entire process looks like this.
- Checking that you meet the criteria – Before filing any paperwork, ensure you meet the criteria for divorce in Ireland:
- You must have lived apart for two out of the previous three years.
- You or your spouse must live in Ireland.
- There must be no reasonable prospect of a reconciliation.
- Proper financial provision has been made, or will be made, for both spouses and any dependent children.
- Preparing the paperwork – The main documents you’ll need are:
- A Family Law Civil Bill – setting out when you were married, how long you have lived apart, and the names and birth dates of your children.
- An Affidavit of Means – setting out your financial position such as your assets, income, debts, liabilities, and your outgoings.
- An Affidavit of Welfare (if children are involved) – setting out the details of the children in the marriage, their education, health, and childcare arrangements.
- A Notice of Motion and Affidavit – The Notice of Motion requests the court to consider and rule on your application whilst the affidavit confirms you have followed the rules for getting a divorce.
- Identifying your nearest Circuit Court – Both parties will need to identify the appropriate court that the application spouse will apply to.
- Filing the application – The aforementioned documents will then need to be filed with that court by the applicant spouse, confirming that a copy of the application was provided to the respondent.
- Respondent disagrees – In contested divorce cases the respondent must complete a Defence Document (disputing any of the terms in the Civil Bill), an Affidavit of Means and an Affidavit of Welfare.
- Applying for a court hearing date – Once the applicant and respondent’s documents are filed with the court, the court will then set a date for the hearing.
Remember, a significant step towards achieving a fair settlement in contested divorces involves negotiation. The family law team at McCarthy + Co is highly experienced in this process. To find out more about how we can assist you in negotiations, you can complete our consultation form.
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Frequently Asked Questions
Questions we are often asked in relation to divorce & separation.
What is a contested divorce?
A contested divorce occurs when spouses cannot agree on one or more issues pertaining to the termination of their marriage, such as child custody, property division, spousal support, or other related matters. In contested cases, legal representation is usually sought to oversee the negotiation process. Negotiation through lawyers can help to reduce the possibility of a lengthy, costly, and emotionally taxing divorce with the aim of settling out of court. In situations where are a resolution cannot be found, the case will have to go to court where a judge will have sole discretion over the outcome.
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What is the difference between mediation and negotiation?
Mediation involves a neutral third party, the mediator, who facilitates discussions between the spouses to help them find common ground and reach mutual agreements. The mediator doesn't impose solutions but aids the parties in communicating and understanding each other's perspectives. Negotiation, on the other hand, is a direct discussion between the spouses, often with the assistance of their respective lawyers, aimed at reaching a settlement. While both mediation and negotiation seek amicable resolutions, mediation provides structured guidance from a neutral party, whereas negotiation relies more on the direct interactions and advocacy of the parties and their legal representatives.
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Is it essential to have legal representation in a contested divorce case?
It's highly advisable to seek legal representation if your spouse indicates that they do not agree to the terms of the divorce. Contested divorces can become complex and adversarial, involving intricate legal procedures and negotiations over sensitive issues like child custody, spousal support, and asset division. A knowledgeable solicitor can help you navigate the legal system, advocate for your interests, and work towards a favourable outcome. They can also provide invaluable advice, ensure your rights are protected, and manage necessary documentation and court filings. While it's possible to represent oneself, the stakes and complexities involved in contested divorce cases make having professional legal representation a prudent choice.
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How long does it take to get a divorce?
The speed of the divorce process hinges on the ability of parties to reach an agreement. When both sides concur and just need a court ruling, the process is more expedient, typically taking around three months, contingent on the Court Listing. However, if an agreement remains elusive, the timeline can be influenced by the intricacy of issues surrounding the marriage's dissolution and asset division. In such cases, securing a Divorce hearing date usually spans between eighteen months to two years.
Clíodhna O’Regan
Associate Solicitor
Clíodhna O’Regan leads the family law department at McCarthy + Co. Clíodhna’s educational background includes studying law and European studies at the University of Limerick, even completing a semester in Madrid where she navigated the complexities of law in Spanish.
Clíodhna can be contacted via email at: cliodhna@mccarthy.ie
About McCarthy + Co
McCarthy + Co. are a team of solicitors with more than 30 years of experience in providing legal advice, guidance and assistance to clients across Ireland.
We are a family-run business with offices in Dublin and Cork, but we have dealt with clients everywhere from Galway and Limerick to Waterford. We are honest, plain-speaking and thorough – we will work alongside you to achieve the best possible outcome for your case.
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Flor McCarthy wears multiple hats, not only as the managing partner of one of Ireland’s leading law firms, but also as an author, speaker and an acknowledged expert in client service, innovation and marketing.
Beginning his academic journey at UCC, Flor furthered his education with a master’s degree in law from UCD. After gaining valuable experience as a solicitor in Dublin, the allure of home and the family brought him back to West Cork to contribute his expertise to the family business.
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John McCarthy
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John McCarthy is a seasoned solicitor with almost 20 years of experience, specialises in personal injury and medical negligence claims, focusing particularly on high-value compensation cases. His extensive litigation experience spans Circuit Court, High Court and Supreme Court levels.
John's practice involves a diverse range of cases, from personal injury and wrongful death to property damage, defective products, professional negligence and judicial reviews.
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