DIY Divorce Ireland

Protecting Pension Rights

2009-11-09T14:07:00.000-08:00

My wife and I inserted a clause in our Separation Agreement that neither of us would have any interest in our respective pensions. Is that the end of the matter or can either of us raise this issue again?

Firstly, you both have protection under the law of contract. However, the Courts are not bound by your contract in a divorce application. It has been stated in the Supreme Court that while the judiciary will be looth to interfere in a legal binding contract that has been properly negotiated they will not be bound by the terms of a Separation Agreement/Deed of Separation if they believe they were unfair to begin with, circumstances have changed, either party were under duress at the time of the agreement, there was poor legal opinion obtained etc.

The only way to fully protect your pension is by applying for pension adjustment orders through an application for divorce.

Secondly, if you have a Separation Agreement/Deed of Separation you, by law, cannot apply for a judicial separation. Therefore, in this situation you can only fully protect your pension by applying for pension adjustment orders in a divorce application.

Thirdly, the sooner you apply for divorce and obtain pension adjustment orders the more protection you give to retaining pension rights as the Court can only award a percentage of a members retirement benefit for that amount that has accrued at the time of the making of the divorce decree.

Likewise if you have protected your pension or awarded a share of your pension to your spouse as part of an application for Judicial Separation a Court in a subsequent application for a divorce can on application revise such an order. Therefore again the quicker you apply for your divorce and obtain the court pension adjustment orders the quicker you are protected. Once you have been granted a decree of divorce you can also seek an order to exclude or restrict a subsequent order to vary the pension adjustment order. Then and only then are you assured of your pension rights.

Why wait 4 years for divorce?

2009-11-09T06:12:00.000-08:00

Why do we have to wait over 4 years before we can get a divorce in Ireland?

This is a very relevant question especially considering our pro European vote for the recent Lisbon Treaty. Many would say the same rights should prevail across Europe while others, including ourselves constantly seek derogation from certain aspects of European policy and law. The length of time before one can obtain a divorce varies depending on the EU state you live in. For instance, it is 6 years in France compared to 1 year in Spain.

However, a greater case for reform can be made when we consider the effective waiting period for divorce in a no fault system like our own and where there is consent between the parties. In this scenario the results are as follows:

Belgium.............no waiting period
Bulgaria.............no waiting period
Czech Rep..........no waiting period
Hungary.............no waiting period
Netherlands.........no waiting period
Poland...............no waiting period
Sweden..............no waiting period

Austria..............6 months waiting period
Denmark............6 months waiting period
Finland..............6 months waiting period

Germany............1 year waiting period
Portugal.............1 year waiting period
Spain................1 year waiting period

UK...................2 year waiting period
Italy.................3 year waiting period
Greece..............4 year waiting period
Ireland..............4 year waiting period
France..............6 year waiting period

Court Case Progression Hearing

2009-10-13T04:58:00.000-07:00

For how long can either party drag out a divorce i.e. by not sending in the bank statements in time?

We have received many queries like this where one party frustrates the application for divorce or judicial separation by not submitting their Affidavit of Means or details of their property, assets or income. We are shocked to hear that some solicitors say in response to their clients that there is nothing that can be done.

Firstly, every spouse in proceedings for divorce or judicial separation where orders are sought concerning maintenance, lump sum provision, property, financial compensation orders, succession act rights or pension adjustment orders must submit to the other spouse "such particulars of his or her property and income as may reasonably be required for the purposes of the proceedings". Where a person fails or refuses to comply the court can direct the person to comply. [Sections 38 (7) and (8) of the Family Law Act, 1995 and Sections 38 (6) and (7) of the Family Law (Divorce) Act, 1996]

Secondly, under a new statue law called the Circuit Court Rules (Case Progression in Family Law Proceedings) 2008, S.I. 358 of 2008 the County Registrar can make directions on the vouching of an Affidavit of Means "within 28 days of the date of filing of the Respondent's Affidavit of Means or 21 days before the date fixed for for a case progression hearing, whichever is the earlier".

Where the Respondent has not filed a Defence and a case progression hearing has been listed, each party shall vouch his Affidavit of Means within such time as the County Registrar shall direct. In the event of a party failing to file, serve or properly vouch the items referred to in, their Affidavit of Means as required by the rules the County Registrar can on application by notice of motion or in the course of case progression make an Order allowing more time for the party in default to file or serve an Affidavit of Means and/or vouch (in such manner or on such terms as the Court, or the County Registrar as the case may be, directs) the items referred to in an Affidavit of Means or make an Order for Discovery.

The Court may also make an Order that such party shall not be entitled to pursue or defend as appropriate a claim for any ancillary reliefs under the Acts and may grant Orders under Sections 38 (7) and (8) of the Family Law Act, 1995 in the case of judicial separation and Sections 38 (6) and (7) of the Family Law (Divorce) Act, 1996 in the case of divorce directing the person to comply with such particulars of his or her property and income as may reasonably be required for the purposes of the proceedings.

It is therefore not possible for a spouse or his/her solicitors to hold up proceedings indefinitely. Either spouse or their solicitors can apply to the Courts or the County Registrar to have the defaulting party comply with the Court rules.

2009-10-09T04:30:00.000-07:00

What is collaborative family law and why are some solicitors now advertising its use?

Collaborative family law is a model for the conduct of family law negotiations. It involves the parties and their respective legal representatives working together for the sole purpose of reaching a settlement in regard to the issues that might divide parties. It is sold on the basis that these four-way meetings with both spouses and their two sets of legal representatives, including solicitors and barristers, all present together represent a better problem solving approach to issues of disagreement than the normal adversarial or hostile approach.

If there is a failure to reach agreement or a threat of legal proceedings then the legal representatives are obliged to withdraw and they are prohibited from ever representing their clients again in contested proceedings. They must then assist with the orderly transfer of the matter to any new legal team hired by the parties.

There are a number of points we would make in relation to this system. Firstly, there seems to be a complete forgetfulness on the part of solicitors that they are duty bound by statue law to assist parties with reconciliation, mediation and settlement by agreement. Their choice of operating the present adversarial and hostile system is entirely of their own making. For some of them to now sell a new approach while their colleagues continue to operate the old adversarial system is nothing short of an acceptance that the system operated by the majority is flawed and has been for some time.

Pursuant to Sections 5 and 6 of the Judicial Separation and Family Law Reform Act, 1989 and Sections 6 and 7 of the Family Law (Divorce) Act, 1996 solicitors acting for Applicants and Respondents in applications for judicial separation and divorce must prior to the applications being made

(a) discuss with the Applicant and Respondent the possibility of reconciliation and give them the names and addresses of persons qualified to help effect a reconciliation between spouses who have become estranged, and

(b) discuss with the Applicant and Respondent the possibility of engaging in mediation to help effect a separation or a divorce on a basis agreed between the parties and give them the names and addresses of persons qualified to provide a mediation service for spouses who have become estranged, and

( c) discuss with the Applicant and Respondent the possibility (where appropriate) of effecting a separation by means of a deed or agreement in writing executed or made by the parties and providing for their separationWe belive that the legal practicioneers are not doing enough to encourage and assist parties in negotiating a settlement as they are duty bound to do and if they were we would not need a new legal based system.

Secondly, we would say that the pressure of reaching a settlement using the collaborative model now shifts to the legal teams if they wish to remain as representatives and in that scenario who is to say that their focus is more on a settlement at any cost rather than a fair settlement for both parties. Legal writers have critised the free government mediation service in that they have claimed that mediators through lack of training or skills may be unable to control a domineering spouse. The same concern applies here. A spouse who will not agree can exert pressure on the legal teams to either award him/her more or withdraw. Present negotiations by legal teams on the steps of the court are an example of their flawed approach to negotiations and many decisions made in such an atmosphere of hurried negotiations coupled with the threat of another adjournment have produced decisions that are not only unfair but a downright disgrace that has sown the seeds of bitterness between spouses who may have to continue together parenting their children. The change that is needed is in the attitude and practice of the legal profession to family law issues.

Thirdly, the present charges by solicitors and barristers will ensure a nice tidy sum if you are engaged in a series of four-way meetings. Collaborative law may be beneficial but it will cost you.

We believe the governments free mediation service should be improved and extended and given statutory powers to determine issues in regard to the settlement of family law issues including, the family home, custody and access to children, maintenance etc by trained and qualified mediators. If either party wishes to contest their decisions then they should have access to the courts and if the courts find against them then they should pay all costs. The State should be active in providing alternative methods of settling issues relating to marriage than by the use of our extremely busy and costly court system and lining the pockets of solicitors and barristers as they play chess with peoples lives.

We have parents ending up in District Courts being threatened with jail, as if they were criminals, because they will not abide to unfair court decisions sometimes based on allegations by one spouse against the other. And why on earth should consenting couples have to apply through a Circuit Court to obtain a divorce. They married through a marriage registrar should they not be allow end the marriage through the same process. We need a new system alright, one that is far removed from the legal profession.

Getting a DIY Divorce

2009-07-09T01:45:00.000-07:00

Q: How does your service work?

On receipt of payment we will send, by return post, a questionnaire designed to obtain the necessary information to satisfy the courts. The questionnaire is easy to follow with notes on its completion and is continually updated so that the information can be exchanged hassle free and from the comfort of your own home. We are available by telephone, mail or email to answer any queries you may have in relation to the information required. When we receive the returned questionnaire we will examine it closely to ensure we have the required information and we will make contact if necessary. When we are satisfied with the information given us we will complete the necessary paperwork and have it with you within five working days together with our Step By Step Guide. We provide a full back up service until you complete the procedure and if you do encounter unforeseen problems our service will still be there giving assistance until you get divorced.

For more information go to www.diydivorceireland.ie

Legal Separation and Divorce

2009-07-06T23:53:00.000-07:00

Q: Do I need to have a Separation Agreement or Judicial Separation before applying for divorce?
No, you are not required to have a mediation or separation agreement or a judicial separation before applying for a divorce. However, we believe it is in your interest to make yourself aware of the so-called alternatives to divorce like judicial separation and separation agreements as your divorce hearing could be adjourned if the Judge was not satisfied that you were sufficiently aware of the so-called alternatives to divorce.

For more information go to www.diydivorceireland.ie

Divorce Procedure

2009-07-03T05:37:00.000-07:00

Q: Using your services, how long will the procedure take?

Once you return the completed questionnaire with payment we will send you the divorce documents within 5 working days together with our detailed Step By Step Guide. If you start the procedure without delay and your spouse responds positively within 10 days you should be on a list for the next Circuit Court Family Law hearings within 3 weeks of instituting proceedings. To our knowledge the shortest time period for someone who used our service in the past year to obtain their divorce was four weeks. However, the time it takes depends on your own attentiveness to detail and whether your spouse responds and the next available court date for the hearing.

For more information go to www.diydivorceireland.ie