The Process

Once the decision has been made to apply for a divorce most people consult a solicitor whilst others opt for a DIY approach. Regardless of which approach is taken spouses seeking a divorce must do so through the Court System.

Given the gravity of the matter at stake and often the fact that there is the welfare of children involved and family assets to be divided the vast majority of people elect to engage the services of an experienced family law solicitor either privately or through the state funded legal aid board.

Overview

• either spouse can apply for a Decree of Divorce - the person applying is the Applicant
• the other spouse is the Respondent
• Ireland has adopted a “no fault” system in applying for divorce
• the venue can be in any county where any party ordinarily resides or carries on any profession, business or occupation
• either spouse must be resident in the State for one year prior to the application
• the Court shall be the Circuit Court unless, the market value of any land in which proceedings relate exceed €3m and either party or any person having an interest applies to transfer it to the High Court.

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Pre-requisites
In order to successfully obtain a Decree of Divorce from an Irish Court, it is necessary to satisfy the Court that:-

• At the date of the commencement of the proceedings, the spouses have lived apart for four out of the five previous years.
• There is no reasonable prospect of a reconciliation between the spouses.
• Proper provision is or will be made for the spouse and dependent members of the family.

In addition, before an Applicant spouse will be granted the Decree of Divorce sought, the Court must be satisfied that either spouse is domiciled in the State at the date of issue of the proceedings or that either spouse was ordinarily resident in the State for one year before the date of issue of the proceedings.

The relevant period of four out of five years must have expired before the issuing of the Application for the Decree of Divorce.

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Which Court?

Both the Circuit Court and the High Court have jurisdiction concurrently with each other to hear and determine applications for divorce. At present the majority of applications are made in the Circuit Court as opposed to the High Court. If the assets of the couple are substantial or if there are complicated issues of law or facts involved then it is more likely that proceedings will be issued in the High Court.

A Circuit Court Divorce application can be brought in the County where either party to the proceedings ordinarily resides or carries on any profession, business or occupation.

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Steps in applying for an UNCONTESTED/ CONSENT DIVORCE

STEP 1 DRAFT PROCEEDINGS
In order to apply for a divorce in Ireland the applying party is required to file a number of papers in the Circuit Court Office.

i) The Civil Bill (sample)
The Civil Bill sets out the facts of the case and also lists the various reliefs that are sought from the Court and the grounds for seeking these reliefs.

ii) Affidavit of Means (sample)
In each case where financial relief is sought an Affidavit of Means must be filed. This details all the assets, liabilities, income and expenditure of the applying party and allows the Court to determine whether proper provision is being provided.

iii) Affidavit of Welfare (sample)
The Court has an obligation to ensure that the welfare of dependent children is properly provided for and in any case where there are dependant children involved an Affidavit of Welfare must be filed with the Court. This document contains a series of questions which relate specifically to the personal care of the children. It describes where they live and with whom. It also describes their education and training, their health, childcare arrangements and maintenance and access arrangements.

iv) Solicitors Certificate (sample)
Solicitors are obliged to file with the Court a sworn document certifying that they have discussed with their Client the options of reconcilation, mediation and separation.

STEP 2 ISSUE PROCEEDINGS
When all the Documents are filed with the Court they will be issued and stamped by the County Registrar and allocated a specific case number which is called a record number. They will then be returned to the applying party.

STEP 3 SERVE PROCEEDINGS
The documents must then be served on the other party (known as the Respondent) by Registered Post.

STEP 4 CONSENT DIVORCE
The respondent can file a form of “consent defence” with the Circuit Court office and a Notice of Motion can be served and the parties can apply to transfer the case into the next available consent Judges list for hearing. This method is used to obtain speedy divorce decrees. It also lessens the stress on the parties concerned and minimises legal costs.

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Steps in applying for a CONTESTED DIVORCE

STEP 1 DRAFT PROCEEDINGS
In order to apply for a divorce in Ireland the applying party is required to file a number of papers in the Circuit Court Office.

i) The Civil Bill (sample)
The Civil Bill sets out the facts of the case and also lists the various reliefs that are sought from the Court and the grounds for seeking these reliefs.

ii) Affidavit of Means (sample)
In each case where financial relief is sought an Affidavit of Means must be filed. This details all the assets, liabilities, income and expenditure of the applying party and allows the Court to determine whether proper provision is being provided.

iii) Affidavit of Welfare (sample)
The Court has an obligation to ensure that the welfare of dependent children is properly provided for and in any case where there are dependant children involved an Affidavit of Welfare must be filed with the Court. This document contains a series of questions which relate specifically to the personal care of the children. It describes where they live and with whom. It also describes their education and training, their health, childcare arrangements and maintenance and access arrangements.

vi) Solicitors Certificate (sample)
Solicitors are obliged to file with the Court a sworn document certifying that they have discussed with their Client the options of reconcilation, mediation and separation.

STEP 2 ISSUE PROCEEDINGS
When all the Documents are filed with the Court they will be issued and stamped by the County Registrar and allocated a specific case number which is called a record number. They will then be returned to the applying party.

STEP 3 SERVE PROCEEDINGS
The documents must then be served on the other party (known as the Respondent) by Registered Post.

STEP 4 DEFENCE
The Respondent must then decide whether or not the application will be defended. If the Respondent decides to defend the Application, he/she must arrange to lodge in the Circuit Court

i) Entry of Appearance
This advises the Court that the Application will be defended.

ii) Defence
This a defence setting out the nature of the defence together with details of the reliefs being sought by him/her

iii) Affidavit of Means
This details all the assets, liabilities, income and expenditure of the Respondent and allows the Court to determine whether proper provision is being provided.

STEP5 DISCOVERY
Both spouses have obligations to provide particulars of his or her property and income to allow proper provision be assessd. If one party feels that the information contained in the Affidavit of Means is not adequate or correct, it is open to that party to persue the issue of discovery of documents and their examination. Discovery is essentially a pre-hearing procedure which may be done voluntarily or pursuant to a Court order and is intention is to make available all documents which exist and may be relevant. The purpose of Discovery is to ensure that all relevant information and documents, whether beneficial or detrimental to the parties cases, are produced in advance of the hearing.

STEP 6 NOTICE OF TRIAL
When the case is ready to proceed to hearing a document called a Notice of Trial is served and filed in the Circuit Court. The case is then put onto the waiting list of cases to be heard by the Circuit Court.

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