Divorce in Ireland

The living apart requirement

Since the Family Law Act 2019, spouses must have lived apart for two of the previous three years, reduced from four of the previous five. Living apart does not necessarily mean living in separate houses. The courts recognise that spouses can live separate lives under one roof, and section 5(1A) of the 1996 Act (inserted in 2019) confirms that spouses who live in the same dwelling are considered to be living apart if the court is satisfied they do not live together as a couple in an intimate and committed relationship.

This matters in Kilkenny and rural Ireland generally, where the family home may sit on the farm that generates the family income, and neither spouse can simply move out without disrupting the enterprise. Evidence of separate finances, separate bedrooms, separate social lives and the end of the marital relationship is what the court examines.

Proper provision under section 5

Proper provision is assessed by reference to the factors in section 20 of the 1996 Act: the income, earning capacity, property and other financial resources of each spouse, their financial needs and obligations, the standard of living enjoyed before the breakdown, the age of the spouses and duration of the marriage, contributions made by each (including contributions as homemaker), the effect of marital responsibilities on earning capacity, and conduct in limited circumstances, among others.

There is no automatic 50/50 division in Irish law. The Supreme Court in T v T (2002) indicated that in ample resources cases a starting reference point in the region of one third of assets to the applicant spouse may be appropriate, but stressed that this is not a rule. Every case is decided on its own facts, and the courts have repeatedly emphasised that certainty of outcome is not something Irish family law offers.

Which court: Circuit Court or High Court

Most divorces in the South-East are dealt with by the Circuit Family Court sitting in Kilkenny and the other venues on the South Eastern Circuit. The High Court deals with cases involving very substantial assets, typically where the market value of land exceeds the Circuit Court threshold or where the complexity of the asset base justifies it. The choice of forum has real consequences for costs, timing and procedure, and it is a decision to take deliberately at the outset, not by default.

Orders the court can make

On granting a divorce the court has a wide menu of ancillary reliefs: periodical payments and lump sum orders, property adjustment orders transferring or settling property, orders in relation to the family home, pension adjustment orders, financial compensation orders including life insurance, and orders extinguishing succession rights. The architecture of a well-constructed divorce settlement uses these orders in combination, so that provision is made without unnecessarily dismantling a farm or trading business.