Clients seeking our services in relation to matters of Family Law usually require our assistance in relation to Separation Agreements, Judicial Separation, Divorce, Maintenance/Child Support:
A Separation Agreement
If a married couple in Ireland wish to separate and they can agree the terms upon which they wish to live separately they may enter into a Form of Contract called a Separation Agreement. Both parties must consent to the terms of the Separation. It is advisable that both parties swear Affidavits of Means setting out their income, assets etc. prior to entering into a Deed of Separation. It is a legally binding contract setting out the parties rights and obligations to the other. A Separation cannot deal with matters arising as a result out of Pensions and the Trustees of Pension Schemes are not bound by the terms of a Deed of Separation. Once parties have entered into a formal Deed of Separation, they are not entitled to issue Proceedings through the Courts for a Decree of Judicial Separation
If a married couple in Ireland cannot agree the terms by which they will live separately an application to the Courts for a Decree of Judicial Separation can be made by either party. The Court must be satisfied that the couple has been advised about Counselling / Mediation and that proper provision has been or will be made for in respect of any dependent members of the family. An Application for a Decree of Judicial Separation is made either in the Circuit Court or the High Court. Cases are heard in private and public is not admitted.
What is Divorce?
A Decree of Divorce in Ireland allows both parties to a marriage to re-marry. Before a Court can grant a Decree of Divorce in Ireland, the following conditions must be met: The parties must have been living apart from one another for a period amounting to four out of the previous five years before the Application is made. There must be no reasonable prospect for reconciliation. Proper arrangements must have been made or will be made for the Spouse and any dependent members of the family.
Maintenance/ Child Support
There is a legal responsibility for both Spouses to maintain each other and any dependent members of their family in accordance with their means. Maintenance can be paid weekly or monthly or in a lump sum. In Ireland, paying maintenance does not in itself give a parent access or guardianship rights.
If parties cannot agree upon maintenance, either party can apply to the Courts for a Maintenance Order. This Application can be made through either the District Court or the Circuit Court or the High Court. Maintenance can be ordered to be paid to a Spouse for their benefit or for the benefit of a child who is under the age of eighteen or twenty three if the child is in full time education. If a child has a mental or physical disability to such a degree that it would not be possible for that child to maintain him or herself, then there is no age limit for seeking maintenance for their support.
Each party is under an obligation to disclose in full their finances to the Court. The Judge has to consider all of the family’s circumstances, assets, income etc. when making a Maintenance Order. In cases where a parent/spouse/civil partner fails to comply with a court order and does not pay the amount awarded, an attachment of earnings order can be sought from the court, if the person is in employment or on a private pension. This order results in the maintenance amount being deducted at source by the parent's/spouse's/civil partner's employer. If the parent/spouse/civil partner is self-employed, an enforcement summons can be applied for.
The Civil Law (Miscellaneous Provisions) Act 2011 has amended the legislation to give the District Court the power to regard a failure by a parent/spouse/civil partner to comply with a court order as contempt of court and to deal with it accordingly, including by means of imprisonment If a parent/spouse/civil partner falls behind with payments where there is a maintenance order in place, then it is possible to apply to the court for an attachment of earnings summons. It is possible to get this attachment at the time when you apply for the maintenance order if you fear there may be a default. (In other words, you fear that the other parent/spouse/civil partner may fail to comply with the maintenance order). If the other parent/spouse/civil partner is self-employed, an enforcement summons can be applied for.