A person is entitled to apply to the Irish courts for a divorce if they are domiciled in Ireland at the date on which proceedings issue or if either of them have been ordinarily resident in Ireland for a period of one year prior to the institution of proceedings.

In any application for divorce, the court can only grant an order provided the following grounds are met:

• The spouses have lived apart from one another for a period of at least four years during the previous five years immediately prior to the institution of proceedings.
• There is no reasonable prospect of reconciliation between the spouses.
• Proper provision has been made for all the parties and all dependent members of the family

The one ground that generally can cause a difficulty is the first ground – that the parties have lived apart from one another for periods amounting to at least four years during the previous five years. An individual can be living apart from his/her spouse while still living under the same roof but generally speaking the parties are living in separate accommodation during the period and this will avoid any difficulties arising.

There must be no reasonable prospect of reconciliation and this has created difficulties particularly in circumstances where one party does not want a divorce. It may be that one party feels that the marriage can be saved if the other party would attempt counselling or receive treatment for a particular difficulty. While there is an onus on the solicitor for both sides to discuss alternatives to separation, this can often be a somewhat academic exercise and it may well be that at some point in the future a court will refuse to grant a decree of divorce in circumstances where one party feels that every effort has not been made to try and effect a reconciliation.

Section 8(1) of the Family Law (Divorce) 1996 Act states:

“Where an application is made to the court for the grant of a decree of divorce, the court shall give consideration to the possibility of reconciliation between the spouses concerned, accordingly may adjourn the proceedings at any time for the purpose of enabling attempts to be made by the spouses if they both so wish, to affect such a reconciliation with or without the assistance of a third party”.

The difficulty here relates to the use of the phrase “if they both so wish”. Often a husband or a wife will come to us and say that they do not believe there are genuine grounds for separation and they will often refer to interference from third parties and say that if for instance certain third parties were not interfering there would be no difficulty in the relationship. Unfortunately however the legislation is quite specific and the critical words are “if they both so wish” not if one of them so wishes or if the court deems it reasonable.

The final ground relates to the proper provision for the spouses and dependent members of the family.

A dependent member of the family includes any child of the parties (which includes an adopted child) but also includes a child to whom both spouses are in loco parentis. If therefore a couple are permanently looking after a grandchild or a relation’s child and effectively stepping into the parent’s shoes, then that child will be regarded as a dependent for the purposes of making proper provision in the event of a divorce. Generally speaking dependent children are under 18 years of age but if they are continuing in third level education, then they remain dependent up to the age of 23 years. If a child is suffering from a mental or physical disability and cannot maintain himself or herself then that child will also remain dependent indefinitely.

FAQs

Q. Does the granting of a divorce affect my inheritance rights?
A. Yes it does. If you are divorced then you have ceased to be a spouse under the Succession Act, 1965 or the Family Home Protection Act, 1976 and generally speaking when an order for divorce is granted, a separate order, known as a Section 18 (10) order is made, which effectively blocks either party from inheriting from the other.

Q. If I am divorced and my husband/wife is aggressive or violent or threatening to me, are there any remedies open to me?
A. Yes, you still have all your rights under the Domestic Violence Act, 1996 and the Domestic Violence (Amendment) Act, 2002 to bring proceedings seeking protection.