- May 13, 2021
- Posted by: granitewordpress
- Category: News
Karen Tobin, Family Law Solicitor and Mediator at Comyn Kelleher Tobin LLP (CKT) recently spoke with Image.ie on the topic of separation and divorce. This article outlines your options, your rights, the paperwork to have ready and the mistakes to avoid making if you have decided to end your relationship. Read the full article here.
We are all too aware that the way in which we are now forced to live our lives, as a result of the pandemic, is having a significant impact on our core relationships, be it personal and/or professional. The pandemic for many couples has acted as a catalyst for relationship breakdowns particularly where there were pre-existing frailties and stressors.
The financial legacy of Covid-19 has also put further pressure on relationships that may already have been struggling resulting in an increase of enquiries for information on options including separation and divorce.
Consulting a Family Law Solicitor
Arriving at the decision that your relationship is at an end, is undoubtedly one of the most difficult ones you will make. Embarking on this process is not easy. It can be daunting to begin with but once you obtain professional advice the journey can be made more bearable and the path ahead becomes clearer.
The first step is to consult a family law solicitor who can give you tailored advice to suit your family’s individual needs. Every case that comes to us is different and will benefit from an initial consultation to give you a better sense of the process involved and the options available to you, including mediation, separation agreement, judicial separation, or divorce.
What is Mediation?
Mediation is a confidential, voluntary process in which parties to a dispute work with the assistance of a mediator, chosen by the parties themselves, to reach a mutually acceptable agreement to resolve the dispute. The option of mediation must be given early consideration and your solicitor will discuss and is obliged to advise you that this process is available to you. We have seen an increase in the number of cases resolved through mediation as Covid-19 has put pressure on the court system with emergency cases only being heard during level 5 restrictions. The pandemic has led to a significant backlog in already busy court lists. There is a significant saving on cost and time if an agreement can be reached early. Mediation allows both spouses to keep control of both the process and the outcome which is often far preferable than terms which might be imposed if left to a court to decide the outcome.
The benefit of mediation is that parties can chose when and where the mediation takes place and who is to be involved in the process If an agreement is reached through mediation, the parties solicitors will draft a legal agreement and any appropriate applications are made to the court for the agreement to become a court order, usually by way of divorce.
If mediation is not an option for you, your solicitor will advise you of the alternative steps to take in your case.
The key differences between a Separation Agreement, Judicial Separation, and a Divorce:
A Separation Agreement is a legally binding agreement, drafted by legal advisors, it is not an order of the court and there are no court applications for this process. A separation agreement can be concluded within a matter of months.
A Judicial Separation is granted by the courts. This can be done by way of agreed terms or court ordered imposed terms. To apply for a judicial separation one of the following criteria is required;-
1. The spouses must not be in an intimate and committed relationship for one year before making an application to court, or
2. The behaviour of a spouse is such that the other spouse is permitted to make an application to the court for a Separation, and in those circumstances, no time limit is required.
If a separation proceeds to a court hearing, the parties can expect a time period of between 12 to 18 months before a date is allocated to their case from the date of the application.
For a Divorce, the parties must not have had an intimate and committed relationship for two years out of the last three years. Prior to 2019 the waiting period was a minimum of four years, and this reduction is of huge benefit from both a financial and emotional perspective for the parties allowing people to move on with their lives. A divorce can only be granted by the court. The time period for court hearings where cases do not resolve by way of agreement is between 12 to 18 months from the date of the application to the court.
If proceedings are instigated for a separation or divorce, this does not prevent you from entering into an agreement with your spouse through your solicitors at any point. It is usually in everyone’s interest that their case resolves by agreement, which provides the parties with far more control over the final outcome rather than have an order imposed by the court. Unfortunately, there are of course cases where litigation cannot be avoided such as where assets are concealed.
What will going to court entail?
The primary focus of any separation or divorce should be the parties’ dependent children, if any. Any agreements or court orders must deal with custody and access arrangements for children of the family. Sometimes it may be helpful for separating couples and their children to engage in therapeutic intervention to cope with the breakdown of the relationship and to help them adjust to changed circumstances. If concerns arise surrounding the children’s welfare, or if the children’s voices should be heard, the court may direct a formal report to be carried out by an appropriate independent expert, for example, a child psychologist.
Other important matters which must be considered relate to child maintenance and spousal maintenance (where applicable), division of property, financial assets, pensions, inheritance rights and any mortgages, debts and liabilities.
Where the size or extent of the assets is unclear then the parties may have to seek a discovery Order from the Court obliging disclosure of details of assets. In many cases parties may require the assistance of a forensic accountant.
Mistakes to avoid making
• Embarking on a legal process without taking legal advice
• Not having legal representation at a court hearing. If the couple are having financial difficulties, they should establish if they are entitled to Legal Aid which would provide them with necessary support in court.
• Assuming that proceeding to court is the only option. It is not, and parties should keep an open mind to exploring settlement and mediation. There are considerable delays in court hearings. There can be a number of cases listed on any particular day and people can be very dissatisfied at the time and attention that has been given to their case by the court, and ultimately, the outcome.
Paperwork to have ready
Your solicitor will advise you as to what specific paperwork will be required for your case, however, the following general checklist will assist:
• Brief personal history of the relationship.
• Your original state marriage certificate.
• Any relevant information pertaining to the children.
• Mortgage statement or rental agreement.
• Recent P60 or set of accounts if self-employed.
• Bank account statements for a 12-month period.
• Pension statement.
Important Questions to Ask your Solicitor:
The particular facts surrounding each case are unique. A general guide to what you should establish are:
• What options are available to me?
• What is the likely outcome for a case such as mine?
• What is the approximate timeframe?
• How much is the process likely to cost?
Conclusion:
The pandemic has forced many people to review their living and working arrangements and consider different lifestyles. This re-evaluation is also having an impact on people reviewing their marriage with couples assessing their emotional and financial needs.
Karen represents clients in the areas of child care and family law. Her family law experience focuses on divorce, judicial separation, civil partnership, nullity, surrogacy, custody and access disputes, maintenance and domestic violence disputes in contentious and non-contentious matters.
Disclaimer: The information provided in this article is as a general guide only. You should contact a solicitor for legal advice specific to your situation.