Divorce Flashcards
What are the four requirements that must be satisfied under the constitution?
- 3.2°
(i) at the date of the institution of the proceedings the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years;
(ii) there is no reasonable prospect of reconciliation between the spouses;
(iii) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law; and
(iv) any further conditions prescribed by law are complied with.
Alternatives
Before a court will hear a divorce application, it must be satisfied that there has been compliance by solicitors with sections 6 and 7 of the 1996 Act (as amended by Mediation Act 2017) These sections make provision to ensure that the applicant and respondent have been made aware of the alternatives to divorce proceedings such as marriage counselling, mediation services and the possibility of effecting a separation by means of a separation agreement or deed. The solicitors acting for the parties are required to -complete a statutory declaration that these sections have been complied with.
The Grounds for the Granting of a Decree of Divorce
Section 5 of the 1996 Act (as amended by the Family Law Act 2019) sets out the grounds for the granting of a decree of divorce. Section 5 states:
- Subject to the provisions of this Act, where, on application to it in that behalf by either of the spouses concerned the court is satisfied that:
(a) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least two years during the previous three years
(b) there is no prospect of a reconciliation between the spouses; and
(c) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any
dependent member of the family,
LB v. Ireland and Ors [2006] IEHC 275.
The grounds for the grant of a decree of divorce do not include reference to the conduct or behaviour of the parties. However, under s 20 of the 1996 Act, when the court is making orders for ancillary relief, one of the factors to which it will have regard is “the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it.”
he “no-fault” basis for divorce regime was held to be constitutional in the above case.
“Living a part”
McA v. McA [2000] 2 ILRM 48.
n this case, the parties had been married for twenty years. Difficulties arose and in September 1988, the respondent left the family home. The respondent was having an affair with another woman. Three years later, having ended the affair, the respondent returned to the family home. The respondent argued that he returned to the family home to build a better relationship with his children rather than to resume a matrimonial relationship with the wife.
He agreed to pay his wife a monthly sum and discharged the costs of the wife’s motoring expenses. The respondent finally left the family home in 1997. During the period between 1991 and 1997 the parties slept in separate bedrooms. In 1995 and 1996, both the husband and wife entered into relationships with other parties. The applicant instituted judicial separation proceedings and the respondent counterclaimed for a decree of divorce. The applicant contested the divorce application on the ground that they had not been living apart for four of the five years preceding the date of institution of the proceedings. In looking at whether the parties had lived apart for the requisite period, McCracken J explained that:
M]arriage is not primarily concerned about where the spouses live or whether they live under the same roof and indeed there can be a number of circumstances in which the matrimonial relationship continues even though the parties are not living under the same roof as, for example, where one party is in hospital or an institution of some kind or is obliged to spend a great deal of time away from the home in the course or his or her employment. Such separations do not necessarily constitute the persons as living apart from one another. Clearly there must be something more than mere physical separation and the mental or intellectual attitudes of the parties are also of considerable relevance.
The Family Law Act 2019 amends both s 5 of the 1996 Act and s 2 of the Judicial Separation and Family Law Reform Act 1989
such that a court may be satisfied that spouses have lived apart notwithstanding that they have occupied the same dwelling, if the court is satisfied that the spouses have not lived together as a couple in an intimate and committed relationship.
Dependent Children:
Section 2(1) of the 1996 Act defines such dependent member of the family in relation to the spouses as any child
(a) of both spouses or adopted by both spouses under the Adoption Act, 1952 to 1998, or in relation to whom both spouses are in loco parentis, or
(b) of either spouse or adopted by either spouse under those Acts, or in relation to where either spouse is in loco parentis, where the other spouse being aware that he or she is not the parent of the child, has treated the child as a member of the family,
who is under the age of 18 years or if the child has attained that age –
i. is or will be or, if an order were made under this Act providing for periodical payments for the benefit of the child or for the provision of a lump sum for the child, would be receiving full- time education or instruction at any university, college, school, or other educational establishment and is under the age of 23 years, or
ii. has a mental or physical disability to such extent that it is not reasonably possible for the child to maintain himself or herself fully.
Cohabitation case
McA v McA (2000)-
man left wife and family for an affair. He returned to the family home to resume a relationship with his CHILDREN. He and his wife slept in different rooms and had their own romantic relationships with other parties. Husband applied for a divorce and the wife contested on the grounds that the alloted time had not passed. The court ruled that it did. Because even though they lived together- the relationship was not one of husband and wife.
G v G
proper provision is not a redistribution of wealth
Effects of a decree of divorce
The marriage is dissolved and the parties are free to remarry
Status as guardian of a child is unaffected
The right to bring proceedings under Domestic Violence Act 1996 is retained
The rights to apply for widow (ers), deserted wives or one parent payments are retained
Status as spouse for Family Home Protection Act (1976) and Succession Act (1965) is lost
Guardianship, access, custody
section 5(1)
3 factors for divorce
section 2(1)
proper provision for spouses and children
section 20(4)
needs of children
section 13
maintainence- attachment of earnings order
section 11
preliminary reliefs
