Divorce was introduced into Ireland on the 27th February 1997 following the referendum of the 24th November 1995.   Both the Circuit Court and the High Court have jurisdiction to hear divorce applications.

What are the grounds for divorce?

S. 5(1) of the Family Law (Divorce) Act 1996 sets out the grounds that must be satisfied before a court will grant a decree of divorce:

• At the date of the institution of the proceedings, the couple must have lived apart from one another for at least four of the previous five years;
• There is no reasonable prospect of reconciliation;
• Such provisions as the court considers proper having regard to the circumstances will be made for the spouses and any dependent family member.

As discussed in relation to Separation Agreements and Judicial Separation, solicitors for both parties to a Divorce Application must comply with their legal obligations under the Family Law (Divorce) Act, 1996.   Such obligations include:

• the possibility of reconciliation and supply the names and addresses of those persons able to bring about such a reconciliation;
• the possibility of employing mediation to bring about a separation on an agreed basis and supply the names and addresses of those persons who can provide the mediation service; and the possibility of effecting a separation by way of a Separation Deed.

One a Divorce has been granted it is common for the Courts to make a further Order regarding the division of property, pensions, succession rights of the parties, maintenance and custody of the children.   It must be stressed that there is no “clean break” principal regarding Divorce proceedings in Ireland.   This effectively means that once a Divorce Order has been granted together with all other ancillary Orders, it remains open to each party to that Divorce to return to the Courts at a later stage to seek further Orders of other properties from their ex-spouse.

Guardianship

What is guardianship?

Guardianship encompasses the rights and duties of parents as regards the rearing of their children.     It includes the duty to maintain and correctly care for the child and also refers to the decisions relating to the daily life and development of that child.

Who can be a guardian?

The question of whether the father of a child is the automatic guardian of that child depends upon the father’s relationship with the mother of the child: the natural father of the child who is not married to the mother at the time of the birth of the child, is not the automatic guardian of that child. If a father finds himself in this position, he can apply to the courts to be appointed as guardian of that child. This can prove quite expensive and onerous, therefore, there is an easier alternative by obtaining the mother’s agreement and support to the appointment of the father as a guardian of the child. The mother is automatically the guardian of the child, even if not married to the father of the child at the date of the child’s birth.
If the parents of the child are married at the time of the birth of the child, then both parents are the automatic guardians of the child.

A Testamentary Guardian by Will or Deed

A Testamentary Guardian is a guardian appointed by a parent, usually in a Will, to look after their child should they die before the child reaches the age of eighteen. This testamentary guardian then acts together with the surviving parent of the child for as long as that surviving parent remains alive. A situation may arise where the surviving parent objects to the testamentary guardian so acting.   If such arises, the Testamentary Guardian can apply to the Court who may order that the appointed testamentary Guardian should act.

It is important to note that a Court has jurisdiction to remove a Guardian appointed by Will or by Order of the Court and can appoint another Guardian in his/her place.