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Factors considered by a court in a separation/divorce/dissolution

Introduction

In Ireland, you can legally end a marriage in three ways – a separation agreement, judicial separation and divorce. You can also legally end a civil partnership using a process called dissolution.

In order to be granted a judicial separation, divorce or dissolution, you must apply to the courts. The court will look at a range of factors when considering your application, such as your income and standard of living.

Depending on your situation, the court can make ancillary orders impacting different aspects of your life. For example, these can relate to the custody of your children and ownership of the family home.

This page outlines the most common ancillary orders in cases of separation, divorce and dissolution. It also looks at the main factors considered by the court when making these orders.

Separation agreements are instead negotiated through your solicitor and your spouse’s solicitor, and do not need to go through the courts.

Ancillary orders

An ancillary order (sometimes called an ancillary relief) is an order made by the court to make sure that spouses and dependants (such as children) are properly provided for following the breakdown of the marriage.

The family law courts can make a range of ancillary orders when granting a judicial separation, divorce or dissolution.

Most ancillary court orders relate to:

Maintenance payments

In Ireland, there is no ‘standard’ amount of maintenance a spouse must pay (or is entitled to). Instead, the court considers all factors of your personal situation.

In some cases, your payments will be backdated to the date your separation application was issued, but no earlier. The court can order these arrears to be paid in a lump sum, and by a certain date.

All separations, divorces and dissolutions are ruled on a case-by-case basis.

Factors considered by the court when making an ancillary order

The court will consider all of your circumstances, and your family’s circumstances, before making an ancillary order. These can include:

Accommodation
  • The accommodation needs of each spouse. For example, if you and your spouse have somewhere to stay, or if either of you can afford to move.
Finances
  • The current and likely future income of each spouse, including your ability to earn and any assets you have
  • The current and future financial needs and obligations of each spouse
  • The input each spouse or civil partner has made, and is likely to make, to the welfare of the family (this includes any contribution made that increased the income and financial resources of the other spouse)
  • The extent to which the marriage or civil partnership affected each spouse's ability to earn
  • The value of any benefits given up by either spouse because of the judicial separation, divorce or dissolution
Lifestyle and impact on other family members
  • The standard of living of the family before the break-up of the marriage or civil partnership. While the court will take this into account, it will also accept that, in many cases, separation will result in a drop in the standard of living of both spouses
  • The age of each spouse, the duration of the marriage or civil partnership, and the length of time the spouses or civil partners lived together
  • Any physical or mental disability of either you or your spouse
  • The rights of any other person affected by the judicial separation, divorce or dissolution (for example, children)
Children
  • The accommodation needs of any children
  • The financial needs of your children
  • The educational needs of your children
  • The physical and mental health needs of your children
Conduct
  • The conduct (behaviour) of each spouse

After an ancillary order is made

Ancillary orders do not have to last forever. If your circumstances change over time, or if your spouse’s circumstances change, you can ask the court to:

  • Vary the order (change the terms of the order, for example, how much maintenance must be paid)
  • Discharge the order (stop or end the order completely)
  • Suspend the order (temporarily pause the order)

If maintenance order payments are not paid

If a former spouse or civil partner does not make the necessary maintenance payments, and they are in employment or on a private pension, you can apply to the court for an attachment of earnings order. This means the maintenance will be deducted from their earnings by their employer.

You must make this application in writing – using Form 54.21 (doc) if you were married to, or a civil partner of, the respondent.

Read more about applying for maintenance on Courts.ie.

Further information

Read about how to apply for judicial separation in Ireland.

You can also read about getting a divorce.

If you want to legally end your civil partnership, read about applying for a decree of dissolution.

You may also want to read about:

Or, you can visit the Courts’ website for more information on divorce and judicial separation.

Page edited: 17 May 2021

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