Dear Claudine,

My Wife and I are separated for over ten years. We are both in new relationships and our five children are now independent. Even though I left my home a long time ago, I have always paid maintenance to my wife and my five children. I no longer pay maintenance for my children, but I pay my wife €100.00 per week. The family home is still in our joint names and we would now like to legalise matters.

Please advise me.

Thanks,

Tom

Dear Tom,

Thank you very much for your letter. As you have been living apart from your wife for in excess of ten years and there is no reasonable prospect of reconciliation between you, you are eligible to apply for a Decree of Divorce under the Family Law (Divorce) Act 1996. There are three grounds which must be fulfilled before a Court will grant a Decree of Divorce:
(a) At the date of the institution of the proceedings, the spouses have lived separate and apart from one another for a minimum period of four years during the previous five years.
(b) There is no prospect of reconciliation between the spouses (c) The Court considers that proper provision has been made or will be made with regard to the individual financial circumstances of the spouses and/or any dependant family members. All of these grounds must be satisfied before a Court will grant a Decree of Divorce. The four year period must have expired prior to Divorce Proceedings being issued and served on the Respondent Spouse. It is also important to note that an individual can be living apart from his or her spouse even though they are residing under the same roof. In advance of making any Order, the Court will require that both spouses swear an Affidavit of Means setting out in detail all of their assets and liabilities including pension details where appropriate. If the court is satisfied that the grounds have been met, it will then grant a Decree of Divorce dissolving the marriage. The court may also make Orders in relation to the custody of children, access arrangements, the payment of maintenance and lump sums, the transfer of property, the extinguishment of Succession rights, Pension rights etc. Many separating couples obtain a Separation Agreement or a Judicial Separation to regulate matters between them before they seek a Divorce. 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 their circumstances have changed. When a Divorce is granted it cannot be reversed, however, any party can apply to the Court to have any Orders made under the Decree reviewed by the Court such as Maintenance payments. Where a Decree of Divorce is granted the marriage is dissolved and either party is free to remarry. The granting of a Decree of Divorce, shall not affect the rights of the father and mother of a child to continue to be joint guardians. The court, however, may declare either of the parties unfit to have custody of any minor child and if it does so, that party is not entitled to the right to custody of that minor child on the death of the other party. A Divorced party ceases to be a spouse for the purposes of inheritance rights. However, the granting of a Decree of Divorce does not deprive a spouse of his or her right to claim a widow or widower’s pension, the one parent family payment or their right to continue to receive Deserted Wife’s Allowance or Benefits. Before filing an Application to court for a Decree of Divorce, a Solicitor is obliged to discuss the possibility of reconciliation, mediation, and the possibility of effecting a Separation by means of a Separation Agreement with their client to ensure that a client is aware that they may obtain a Separation as an alternative to Divorce.

If both parties are in agreement in relation to the division of marital assets and they both wish to obtain a Decree of Divorce, they may sign Terms of Settlement after having obtained Independent Legal Advice. These Terms of Settlement can be furnished to the court for adjudication as to whether proper provision has been made for the dependent spouse and/or dependent children, where appropriate. Obviously, the legal fees involved to obtain a Decree of Divorce where the parties are in agreement are less costly than if one Spouse is contesting the other Spouse’s application on the grounds that proper provision has not been provided.

As you and your wife have been living apart for an excess of ten years, there are no dependent children and you are both in new relationships, the courts consideration will be primarily focused on the division of the marital assets particularly the family home. The court will require clarification as to your accommodation requirements. Depending on your individual financial circumstances, the court will either order the sale of the family home and after discharge of the mortgage where appropriate, apportion the net sale proceeds between you and your wife. Alternatively, the court may order that the family home be transferred into your wife’s sole name, if she is deemed to be a dependent. A Pension Adjustment Order will be required to be made where appropriate. The court may also make an Order in relation to a lump sum payment to be made to your wife, if her financial needs deem that it would be appropriate.

I hope the above is helpful.

With every good wish,

Claudine