Understanding Ireland’s No-Fault Divorce System
Following the introduction of the Family Law (Divorce) Act 1996, Ireland has operated a no-fault divorce system which means couples can obtain a divorce without the necessity to prove wrongdoing on the part of either spouse. The main requirement is that the couple must have lived apart for two out of the three previous years, and that the marriage has broken down irretrievably.
This system aims to avoid the potentially adversarial process of proving fault, which can exacerbate conflicts and emotional distress for the family involved. Through this approach, the focus is shifted towards reaching an amicable resolution and addressing the practical arrangements necessary for the divorce process to proceed.
To start the divorce proceedings, the applicant must prepare the following documentation:
- 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.
After filing this documentation with the relevant Circuit Court, copies are sent to the respondent (your spouse) who must indicate if they agree or disagree with the terms of the divorce. In scenarios where your spouse disagrees, you will need to enter mediation and/or negotiation to reach a settlement. If an agreement cannot be reached, your case will go to court where a judge will have sole discretion over the settlement. This is why is essential to try to reach an amicable settlement out of court.
At McCarthy + Co, our team are often approached by individuals feeling betrayal, heartbreak, and a sense of loss. This is compounded in situations where they feel they have been wrongly treated by a spouse, leading them to believe they deserve a better financial settlement. However, courts in Ireland rarely look to apportion blame except in very serious cases of domestic or child abuse. As such, whilst we understand the desire to seek redress for wrongdoing, we always encourage our clients to find a pathway that is focused on avoiding costly, protracted court cases. If you would like assistance in reaching a fair arrangement for yourself and any children you may have, you can start this process by completing our online consultation form.
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Frequently Asked Questions
Questions we are often asked in relation to divorce & separation.
What are the grounds for a divorce?
Before a court can grant a divorce, the following three conditions must be met:
- The spouses must have been living apart from one another for two out of the previous three years on the date the divorce application is made. Note that before the introduction of the Family Law Act 2019, this was 4 out of the previous 5 years.
- There must be no reasonable prospect of reconciliation.
- Proper provision must have been made, or will be made, for the spouses and any dependent children of the parties.
The Family Law Act 2019 also clarifies that ‘living apart’ includes couples who live in the same house but are not in an intimate and committed relationship. The Act also states that a relationship does not stop being an intimate relationship just because it is no longer sexual in nature.
What is a judicial separation?
A judicial separation is a court-ordered arrangement allowing a couple to live independently and allocate their assets without dissolving the marriage. This can be a suitable alternative for couples uncertain about pursuing a divorce or for those looking to resolve financial matters as quickly as possible. You can apply for a judicial separation if: you or your spouse have committed adultery, one of you has engaged in unreasonable behaviour (such as physical or emotional abuse); you have lived apart from one another for at least one year at the time of the application (this includes couples who continue to live in the same home but are not in a committed relationship); a normal marital relationship has not existed for at least a year before the date of the application.
When is a judicial separation preferable to a divorce?
A judicial separation may be an advisable route when couples wish to live apart and settle their assets without terminating their marital status, perhaps due to personal or religious reasons. Although a judicial separation permits both individuals to live independently, it doesn't serve as a permanent resolution. Remarriage for either party is only possible once a divorce has been finalised; however, a preceding judicial separation can notably streamline the divorce process.
Why should I get legally separated if I am unable to remarry?
Opting for a legal separation allows you to address financial matters and move forward with your life shortly after you have agreed with your spouse that the marriage is over. Without the legal separation process, you would need to wait at least 2 years to meet the criteria for a divorce. Following a legal separation, the transition to divorce tends to be more straightforward compared to cases without prior legal separation. This arrangement allows couples to quickly resume their own lives, allows for property sale as part of the settlement, and resolves concerns surrounding child custody, maintenance, and pension matters.
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: firstname.lastname@example.org
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.
Our Awards & Accreditations
We are a multi-award winning firm, accredited by the Law Society of Ireland.
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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 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.
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