FAQ

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 requested. When we receive the returned questionnaire and 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.

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

Once you return the completed questionnaire 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.

Q: How do you apply for a divorce?

A divorce application is commenced by the serving of court approved and stamped documents on your spouse. The documents will contain a Family Law Civil Bill, an Affidavit of Means and an Affidavit of Welfare if there are dependent children of the family. You must provide proof of the sending or serving of all documents, including notice of the divorce hearing, by sworn affidavit. Other documents that are required and the court procedure to follow will depend on the response, if any, from your spouse. Your spouse has three options. He/She may consent to the application for divorce, ignore the application or hire solicitors to represent them. Each option affects the court procedure and documents submitted. DIY Divorce Ireland will supply documents to cover all eventualities and will be at your service until you receive your divorce.

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.

Q: What happens if the Respondent spouse fails to reply?

The Respondent spouse has three choices. They can send you a letter agreeing to the divorce “no contest” in which case the application and remaining procedures take a certain route. They can ignore the documentation in which case you can proceed but you will need to serve a 14 Day Warning Notice, Affidavit of Service of such notice and, depending on any subsequent response, further affidavits. Or your spouse can contest the divorce on particular grounds, in which case they will be required to serve on you similar documentation above outlining the grounds under which they are contesting.

Q: Can my spouse object to the granting of a divorce?

Your spouse cannot prevent you obtaining your divorce but the courts can, if they are not satisfied with the grounds of your divorce application or that proper provision exists or will be made to exist for the spouses and/or any dependent children.

Q: Can either spouse apply for a divorce?

YES. Either spouse can apply for a Decree of Divorce - the person applying is the Applicant and the other spouse is referred to as the Respondent.

Q: Do I have to apply through a solicitor?

NO. The Family Law (Divorce) Act 1996 allows consenting couples to apply for their own divorce.

Q: When can divorce be granted?

A decree of divorce can be granted when the court is satisfied that, at the date of the institution of proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years, there is no reasonable prospect of a reconciliation between the spouses, and such provision as the court considers proper having regard to the circumstances exists or will be made for the spouse and any dependent members of the family.

Q: What matters should I consider before applying for divorce?

Your decision should give consideration to the level of conflict that could arise especially in relation to contentious issues that have not been settled, like the family home, maintenance, custody, property, assets, pensions etc. If the above matters have all been settled and the information you supplied is correct and your documentation and procedure is in order then you should have little difficulty. However, the completion of your documentation and procedure even with consent is no guarantee that you will be divorced. The court must be satisfied that there is proper provision for the spouses and any dependent children.

Q: Have one of the spouses to be at fault for the separation?

No. Ireland has adopted a “ no fault ” system of divorce. A reason for the break up of the marriage is not required.

Q: What if my spouse lives abroad in another EU country?

If your spouse is living abroad in another EU country you can still obtain your divorce by following our procedure, provided you know where your spouse lives. Remember Ireland will not recognise foreign divorces if either party were not domiciled in the country where the divorce was granted. For more information on domicile and foreign divorces see our website www.diydivorceireland.com

Q: What if my spouse is living outside the EU?

A separate application and attendance with the County Registrar must be made to seek permission to serve the Family Law Civil Bill outside the EU to a known address. If difficulties arise with service out of the country then the Applicant will have to apply for an order for direction as to service of the Family Law Civil Bill. We can provide the necessary documentation.

Q: What if I do not know where my spouse is living?

Again you will have to make separate application to the County Registrar for permission to proceed. You will be required to outline the circumstances and what efforts you have made to contact your spouse. You may be required to place advertisements in newspapers

Q. Can I continue to use my married name after Divorce?

Wives may take their husband's names on marriage or retain their former names. A wife can retain her former husband's name after divorce provided she is not using it for the purpose of fraud or to defraud him or to invade other rights or to embarrass him, for instance, by claiming or inferring that he is not legally married to his second wife.

Q: What is a Section 6 Certificate?

Under Section 6 of the Divorce Act, 1996 any applicant, who is represented by a solicitor , must receive from the solicitor a certificate stating that the solicitor has complied with the section and discussed the possibility of reconciliation between the spouses, has given the names of qualified persons who could help effect a reconciliation between the spouses who have become estranged, including the names and addresses of mediators, and discussed the possibility of engaging in mediation to help effect a separation agreement. The certificate must also state that the solicitor has discussed with the Applicant the possibility of effecting a separation by the negotiation and conclusion of a Separation Deed or written Separation Agreement with the Respondent spouse. Finally the solicitor must make the Applicant aware of “Judicial Separation” as an alternative to divorce.

The Divorce Act is silent on how lay litigants (DIY Applicants) are to be made aware of alternatives to divorce.

Q. What is Section 18 (10)?

Section 18 (10) concerns the death of either spouse and empowers the court to make an order preventing either spouse from applying for provision from the proceeds of the deceased spouse's estate.

Section 18 (10) protects each party's estate on death from a claim for provision by the surviving spouse. Even if the Applicant decides not to apply for this Order it can be insisted upon by the Respondent especially if he/she seeks legal opinion.

Q: How many years must I be separated before applying for divorce?

At the date of the institution of proceedings, the spouses must have lived apart from one another for a period of, or periods amounting to , at least four years during the previous five years. For more information on “living apart” see www.diydivorceireland.com

Q: Are there other grounds required to be satisfied?

There must be no reasonable prospect of reconciliation between the spouses, and, such provision as the court considers proper having regard to the circumstances exists or will be made for the spouse and any dependent members of the family.

Q. What can we do if we are unable to agree terms

A . If spouses are unable to resolve their marriage difficulties then they may engage in mediation to effect a separation agreement or a deed of separation.

Q. What is mediation?

Mediation is a process whereby use is made of a mediator or referee to help negotiate between spouses in dispute. Mediation and Separation should then be considered as an alternative to divorce where the issues of custody and parenting, maintenance, child-care, the family home, pensions, assets, debts etc. can then be sorted in an amiable way. This process can ensure that the interests of both parties and the children are satisfied. A Mediation Agreement can therefore be a first step in addressing the difficulties encountered in a marriage.

Q. Where can I obtain mediation?

The Department of Social Community and Family Affairs operate a free Family Mediation Service with Full Time Offices at various centres throughout the country.

Q. What are the benefits of a mediation agreement?

A Mediation Agreement can be a prelude to a Separation Agreement. We would recommend that you consider this route especially if both parties are finding it difficult to agree a settlement. A free information booklet on Separation and Mediation is available from the court offices, and the Citizens Information Centres throughout the country also provide information on this subject.

Q: Do I need a Separation or Divorce to solve issues in regard to access, custody of children, maintenance, the family home etc?

No. Custody and Access to children can be addressed through an application under the Guardianship of Infants Act, 1964.

Barring Orders, Safety Orders and Protection Orders can be availed of under the Domestic Violence Act, 1996.

Maintenance can be addressed under the Family Law (Maintenance of Spouses and Children) Act, 1976.

Issues in relation to the Family Home can be addressed under the Family Home Protection Act 1976, the Married Women's Status Act, 1957 and the Family Law Act, 1995. Ownership of property can be determined under Section 36 of the later Act.

Q: What if we have not sorted the Family Home?

It is possible to include your terms of agreement in relation to the Family Home, Maintenance, Custody, Access etc in your divorce application.

Q: What if I have reservations that my spouse will not honour an agreement on maintenance after divorce?

Whether your spouse dishonours an agreement to pay maintenance based on, consent as outlined in your divorce application, a Separation Agreement, Court Orders granted under the Judicial Separation and Family Law Reform Act, 1989 or any previously attained Maintenance Order the situation is more or less the same. If your spouse fails to make provision you will have to apply to the Court to enforce the orders granted or the terms of the agreement.

Q: In what court area will the divorce application be heard?

The venue can be in any county where any party ordinarily resides or carries on any profession, business or occupation (Rule 4C 2 Circuit Court Rules 2001)

Q: In what court will the divorce hearing be held?

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.

Q. What financial information must I give to the Court?

The Applicant must file an Affidavit of Means setting out details of their assets, debts, income and expenditure and pension details. The Circuit Court Rules, 2001, Rule 7 (a) declares that a Family Law Civil Bill and Affidavit of Means shall be served on the Respondent.

Q. What is the significance of providing financial information?

The filing of an Affidavit of Means will be a court record of a person's financial position and can have a bearing on the Courts decision whether to grant a divorce. There must be proper provision made for the spouses and any dependent children. If circumstances were to change with either party i.e. ill health, unemployment, a win on the lottery or evidence of assets not declared etc either party can return to the court even after divorce for relief.

Either party can make an application to the court for an Order of Discovery and request the other to vouch any or all items referred to. Before bringing a motion for discovery the information sought shall be requested in writing voluntarily at least 14 days prior to the issuing of the motion for any relief. The disclosure of full financial information can lead the other party to seek relief but in many cases it may be sufficient to satisfy the Respondent spouse or their solicitor that the financial circumstances of the Applicant are such that proper provision is made to the best of the Applicant's ability.

We take great care in ensuring that your Affidavit of Means is representative of your financial circumstances and will assist with expert and confidential information. If you are concerned with the disclosure of your financial circumstances we offer a consultation service by appointment.

Q. What information must I give regarding the children?

An Affidavit of Welfare is required in all cases where there are dependent children of the marriage and family. The court must be satisfied that proper provision is made for them and therefore require details on where and with whom the children live, who cares for them, their education, accommodation, health etc.

Q: If I get divorced will I lose my Deserted Wife's Allowance?

Deserted Wife's Allowance, Deserted Wife's Benefit and Lone Parent Allowance continue to be paid to those in receipt of them prior to 1997. Upon the granting of a divorce that is recognised in the State a deserted wife and a loan parent shall continue to be eligible to receive the allowance's or benefit.

Q: What about the One-Parent Family Payment after divorce?

One-Parent Family Payment is payable to a ‘qualified parent' with whom a ‘qualified child' normally resides. A qualified parent whether they are a widow, widower or a separated spouse will continue to be a ‘qualified parent' and entitled to the above payment after obtaining a decree of divorce. Similarly obtaining a divorce does not deprive a divorced spouse of his or her public law entitlement to a Widow or Widowers Pension.

Q: Will remarriage affect eligibility for allowances or benefits?

Eligibility to receive Deserted Wife's Allowance or Benefit ends upon the wife remarrying and Loan Parents Allowance or One-Parent Family Payment also ceases to be payable on the parent remarrying.

Disclaimer

We are not solicitors nor do we purport to be such and while we provide information on divorce, separation and separation topics we will not provide legal advice or legal opinion.

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