A decree of divorce dissolves a marriage and allows both parties to remarry. If a court is satisfied that the required conditions (see ‘Rules’ below) are met, the court will grant the decree of divorce dissolving the marriage. When it grants the decree of divorce, the court may also make orders in relation to custody of children and access to them, the payment of maintenance and lump sums, the transfer of property, pension rights and other matters. When a decree of divorce is granted, it cannot be reversed, except in exceptional circumstances.
You are not legally required to use a solicitor or a barrister. In fact, if you wish, you can choose to represent yourself. However, there may be complex issues that may make it very difficult to apply for a divorce without any professional help. However, if you and your spouse disagree about any issue at all, you are strongly advised to seek our advice. You and your spouse should not use the same solicitor.
Many couples enter into a separation agreement or a judicial separation to regulate matters between them before they seek a divorce. In any application for a decree of divorce, the court can review any previous arrangements made by the parties, such as a decree of judicial separation or a separation agreement, particularly if the circumstances of either party have changed.
After the granting of a decree of divorce, either party can apply to the court to have any orders made under the decree – such as a maintenance order – reviewed by the court.
Before a court can grant a divorce, the following conditions must be met:
- The couple must have been living apart from one another for at least 2 out of the previous 3 years before the application is made. (Before 1 December 2019, this was 4 out of the previous 5 years.) The Family Law Act 2019 also provides a new definition of the term ‘living apart’ (see ‘Living apart’ below).
- Either of the spouses must be domiciled in Ireland when the application is made or, either of the spouses must have lived in Ireland for at least the 1 year period before the application is made.
- There must be no reasonable prospect of reconciliation.
- Proper arrangements must have been made or will be made for the spouse and any dependent members of the family such as children and other relatives.
The Family Law Act 2019 (pdf) provides a definition of ‘living apart’ to give certainty to the interpretation of the term in the Irish courts. It clarifies that spouses who live in the same home as one another are considered to be living apart if the spouses are not living together as a couple in an intimate and committed relationship. The Act also sets out that a relationship does not cease to be an intimate relationship merely because the relationship is no longer sexual in nature.
The Family Mediation Service is a free service provided by the Legal Aid Board to help couples in Ireland who have decided to separate or divorce, or who have already separated, to negotiate their own terms of agreement, while addressing the needs and interests of all involved. Mediation allows people to make their own decisions. 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 represented, any court application must be accompanied by a declaration from a solicitor confirming that the couple have been informed about mediation as an alternative to going to court.
Divorce by consent
Where both parties are in full agreement or come to be in full agreement, the procedure for applying for a divorce decree is different. However, one party must still be the applicant and the other the respondent. You must still meet all the required conditions (see ‘Rules’ above) before a court can grant a decree of divorce.
Recognition of foreign divorces
An application can be made to have an Irish court declare that a divorce and its terms made in another country be recognised here. Whether the divorce is recognised or not will depend on a number of factors including:
- Where it was granted
- When the divorce was granted
- Whether either of the spouses lived in the jurisdiction granting the divorce, for how long and whether or not it was their normal residence and whether they intended to stay there.
Divorces granted in most EU member states are generally automatically recognised here without the need for a court application. However if there is a dispute, an application can be made to have the divorce recognised or not recognised here.
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