Legal options following marital breakdown

Introduction

When a marriage first breaks down, many couples informally separate and live apart. Marital breakdown affects all areas of a person's life, and most people go on to decide or regulate matters between them in a legal context.

Legal options following marriage breakdown

There are 3 different ways to do this in Ireland:

  • If a married couple or civil partners can agree the terms on which they will live separately, they may enter into a separation agreement.
  • When a couple cannot agree the terms by which they will live separately, either party can apply to the courts for a decree of judicial separation.
  • If a court is satisfied that certain conditions are met, the court will grant a decree of divorce dissolving the marriage. A decree of divorce dissolves a marriage and allows both parties to remarry.

In specific circumstances, a court can grant a nullity decree. The effect of a nullity decree is that the court determines that no marriage ever existed. The law in relation to nullity is complex, and you should always seek legal advice to assess whether the circumstances exist for a nullity application. A Roman Catholic Church annulment has no legal effect.

What is the difference between a separation agreement, a judicial separation and a divorce?

A separation agreement is reached through agreement between the parties, whereas a court grants a judicial separation or a divorce. Of these, only a decree of divorce dissolves the marriage and allows each party to remarry.

Children

Married parents are automatically joint guardians of their children. Separation or divorce does not change this. However, separation and divorce do have implications for custody and access to children, and financial matters such as maintenance and the family home.

Mediation

Mediation is a process to help couples who have decided to separate or divorce, or who have already separated, to negotiate their own agreement, while addressing the needs and interests of all involved. Mediation helps you to make decisions to suit your circumstances. If you decide to go to court instead, these decisions will be made by a judge. Mediation is not marriage counselling or a legal advice service.

The Mediation Act 2017 makes it a requirement that any couple must be offered mediation as an alternative to court proceedings. If you are legally represented, any court application must be accompanied by a declaration from a solicitor confirming that you have been informed about mediation as an alternative to going to court.

Further information

The Family Mediation Service offers a free mediation service that helps separating couples co-operate with each other in working out mutually acceptable arrangements. The Family Mediation Service is provided by the Legal Aid Board.

The Mediators' Institute of Ireland provides a list of private accredited mediators. Private mediators charge in a variety of ways (daily rate/hourly rate/flat rate).

Legal aid and advice is available from the Legal Aid Board in family law cases to people who satisfy a means test. If you wish to engage the services of a solicitor privately, the Law Society of Ireland maintains a list of solicitors in Ireland.

FLAC is an independent, voluntary organisation that operates a network of legal advice clinics throughout the country. These clinics are confidential, free of charge and open to all. Contact your nearest Citizens Information Centre for information on FLAC services in your area.


Page edited: 18 March 2021