Divorce

What is divorce?

A decree of divorce dissolves a marriage and allows each party to remarry.

Can I apply for a divorce?

Before a court can grant a divorce, the following conditions must be met:

• the parties must have been married and living apart for a period amounting to four out of the previous five years before the application is made
• there must be no reasonable prospect of reconciliation and
• proper arrangements must have been made or will be made for the spouse and any dependent members of the family.

Can other matters be dealt with at the same time?

Yes. Additional (ancillary) orders can be applied for in the process of divorce. They are similar to the orders that can be applied for in the process of judicial separation and include custody and access to children, the payment of maintenance and lump sums, the transfer of property and the extinguishment of succession rights. If a pension adjustment order is required you must secure a court order to bind the trustees of the scheme.

Where a decree of judicial separation was obtained prior to an application for divorce the court can review the arrangements made in the decree of judicial separation when considering the application for divorce.

How to apply for a judicial separation or divorce

To commence proceedings

Proceedings in the Circuit Court are commenced by lodging an original family law civil bill and two copies in the Circuit Court office. The original is retained in the office and the copies are returned to the person making the application (the applicant) to be served on the person against whom the application is being made (the respondent).

The civil bill sets out the main points of the applicant’s claim, details of the legislation under which the applicant is making his/her claim and the orders (or reliefs) being sought. The civil bill must be dated and include the name, address and occupation of the applicant. It must be signed by the applicant’s solicitor or the applicant. 

In divorce and separation cases, the applicant must file an affidavit of means (where financial relief is sought) and an affidavit of welfare (where there are dependant children) together with a certificate to say that alternative dispute resolution has been considered as an option. If the applicant is claiming a pension order a notice to trustees must be served and filed.

Service of proceedings

The family law civil bill, affidavits of means and welfare (as appropriate) are served by the applicant on the respondent in one of the ways allowed by the court rules, that is by registered prepaid post, by personal service or in such other way as the court or county registrar allows. If you wish to serve documents other than by registered prepaid post or personally you must apply to the court or county registrar ex-parte (that is without informing the respondent) for permission. 

Particular rules apply if you want to serve documents in another country.  If the respondent lives in the European Union you can either serve your documents in accordance with the rules of service of the member state where the respondent lives or send your documents to a ‘transmitting agency’ in the member state where the respondent lives. The agency will arrange service of the documents. For details of transmitting agencies visit: europa.eu

If the respondent lives outside the European Union you must apply to court, before you issue the Family Law Civil Bill, for leave to issue and serve the necessary documents outside Ireland and directions as to how you must serve them. 

When you have served the civil bill you must endorse service in accordance with the Circuit Court rules and file an affidavit (called an affidavit of service) confirming that the civil bill and affidavits of means and welfare (where appropriate) have been served on the respondent.  If you served documents by post you must refer to and include a postal certificate and mark it as an exhibit to the affidavit of service. 

Entering an appearance

The respondent has 10 days from date of service of the civil bill to file an appearance in the Circuit Court office specified in the civil bill and to deliver a copy of the appearance to the applicant/the applicants solicitor. The appearance indicates that he or she intends to defend the action and to file a defence.

Lodging a defence

A further 10 day period is allowed for the respondent to file his or her defence. This must be accompanied by the respondent’s affidavits of means and welfare, if appropriate. Further time is allowed where a party is abroad.

If there is no appearance, the applicant can apply to the court by way of notice of motion for judgment in default of appearance – that is, ask the court to grant the orders sought without further recourse to the respondent.

If there is an appearance but no defence, the applicant can apply to the court by way of motion for judgment in default of defence. In some cases the matter may be referred to case progression.

If the terms of a separation have been agreed or a divorce is uncontested the parties can ask the court to ‘rule’ on the matter. 

Case progression

If the respondent delivers a copy defence to the applicant and files the original with the Circuit Court office a case progression summons addressed to both the applicant and respondent/their solicitors, (if they or either of them is represented by solicitors) will be sent to both parties directing them to appear before the county registrar. The case will be listed before the county registrar not later than 70 days after the date the defence is filed for a case progression hearing. The purpose of case progression is to prepare the proceedings for trial.  This reduces delay and cost and ensures that the time and other resources of the court are employed most effectively. Thereafter the matter will be listed for trial or ruling before a judge.

Other documents

For the hearing, in addition to the documents previously mentioned, you will need your State marriage certificate (a church certificate is not acceptable). Copies are available from the General Register Office phone: 1890 252 076 or www.groireland.ie. 

Court orders

Details of orders made by the court are written on the court file. Litigants may obtain an official copy of an order from their Circuit Court office.

Thanks to the Courts Service for providing this impartial information. 

CONTACT keith@kwsols.ie; 01 455 4723 Keith Walsh solicitor for more information and assistance with your divorce in Ireland questions.