A Straightforward Guide to the Road to Divorce

The pressured living environment we are all currently experiencing has resulted in the breakdown of the marriage of many couples.  One or both partners in a marriage to feel that they have reached a point where they do not wish to carry on and divorce is felt to be a viable option for the future.  Once an individual has reached this point there are a number of hard decisions to be made that will have legal effect and potentially could affect the rest of your life.

If you have decided on a parting of the ways for you and your spouse, the vast majority of individuals are in alien territory, a divorce is a particular event that cannot be compared with other life events and few people have had repeat experiences.

There are a number of steps that must be undertaken, the first of which is to seek legal advice.

Daniel Theron, a partner who heads the family law team, points out “before taking any action or indicating to your spouse that you wish to divorce you should take legal advice from an experienced divorce lawyer.” Daniel further commented “you must fully understand your position before you discuss your intentions with anyone in order to be clear on the consequences of divorce.  It is also imperative that you know something of the impact a divorce will have on your financial position in the future.”

Once you have established that divorce is the path you wish to take you should instruct an experienced divorce lawyer who will apply to the court for permission to file for divorce.  Your application must show the reason you believe your marriage should end.  The enactment of the no-fault divorce Divorce, Dissolution and Separation Act 2020 it now means that one or both parties can simply state that the marriage is no longer viable and they wish to divorce without the need of grounds for divorce.

Once you have embarked on a divorce if both parties can come to mutually satisfactory arrangements over the division of the marital assets, access to children and financial arrangements then the parties may not have to attend court in person.

Once a divorce has been granted the associated aspects of divorce must then be settled, such as the financial settlement, division of any marital assets and the living and access arrangements for any minor children of the marriage.  How the financial arrangements related to a divorce are dispersed is entirely separate to the divorce itself and the conduct of the parties usually has no bearing on the financial settlement.

The major assets regarded as the marital assets typically include:

·         The matrimonial home

·         Savings and cash in the bank

·         Investments

·         Vehicles

·         Pensions

·         Other properties

The starting point for the division of the assets is 50/50 however, frequently the proportions vary in accordance with a variety of factors that influence the disposition and proportion of the assets that each party should receive.  There are a number of considerations such as the length of time the marriage endured; the financial needs of both parties; the earning capacity of the parties; the standard of living during the course of the marriage and the financial responsibilities of each party.  If the former spouses are able to agree on the division of their assets and do not ask the court enshrine their decision in a court order, the agreement will not be legally enforceable.  Therefore, it is strongly advised to revert to the court once a workable arrangement has been made.

Spousal maintenance is paid by one party of the marriage to the other, and is not related to child maintenance.  Spousal maintenance may be paid for a set period of time or for the remainder of the recipient‘s life.  This form of maintenance ends if the recipient marries again or if either party dies.  If there are any changes in the circumstances of either party, the maintenance can be varied.  Many couples elect to have a clean break order in full and final settlement of all liabilities which ends all financial claims between the former spouses.

With regard to the child arrangements, the best interests of the child or children are paramount and the views of children over the age of 12 years may be considered by the court with regard to their main domicile.  Child arrangement orders generally stay in place until the child reaches the age of 16 years but can continue until the child reaches the age of majority. Parental responsibility for minor children of the marriage vests equally between the parents. 

If it proves to be difficult to come to a mutually agreeable arrangement between you and your former spouse, regarding all the issues relating to children or financial matters, mediation may be the best course to assist the process.  The court expects the parties to a divorce to be able to manage these arrangements between themselves without recourse to the court.

Daniel Theron further remarked “the circumstances of each divorcing couple are different which is why legal guidance and advice is imperative, as the consequences of decisions taken can be difficult to reverse,” he further commented “the family team at Giambrone & Partners have extensive experience of magnitude and impact that can result from poor decisions at the crossroads that divorce presents.”    

The highly experienced family lawyers in Giambrone & Partners can advise and guide you through the complexities of your divorce and will be by your side

For more information on all aspects of divorce please click here