- You must have lived separate and apart from your spouse for a period of at least four years out of the last five years. (It is possible to live separate and apart under the same roof. For a court to be satisfied that you are living separate and apart you must be able to show that you are living separate lives and that you are essentially operating two separate households in the one property. The court will consider the following: ceasing of sexual activity, sleeping in separate bedrooms, operating separate bank accounts, not sharing meals, not providing household services, not sharing entertainment activities, not representing to others that the marriage is continuing).
- There must be no prospect of reconciliation between you and your spouse.
- That proper provision is made for all parties.
Are there issues relating to custody and access?
When parents are married they are automatic joint guardians of their children and have the legal responsibility for their upbringing. A divorce will not affect a parent's duty of guardianship. Generally, by the time separated parents decide to initiate divorce proceedings, they have already come to an agreement regarding the day-to-day care and upbringing of the children, as well as with whom the children normally reside. For parents who are satisfied with these arrangements, a DIY divorce is perfect. However if either parent is dissatisfied with the current arrangements regarding custody of and access to the children, and no amicable agreement can be made, the court will make a decision based on the best interests of the children. A custody order and/or access order may be granted. A DIY Divorce is still possible with custody and/or access orders attached, though it will be a little less straight-forward. It is much better if an agreement can be reached in advance.
Are there issues relating to maintenance or assets?
Maintenance payments may be made by one spouse for the benefit of the other spouse and/or their dependent children, either in the form of a lump sum or periodical payments. Where parties have already reached an agreement as to maintenance or where maintenance is not being sought, a DIY divorce is perfect. However, if there is disagreement as to the current state of affairs, a DIY divorce may not be ideal. It should be noted that a divorce does not negate a spouse's obligation to support the other spouse or their children and either party may apply for a maintenance order (or a variation to an existing maintenance order) at any time - even after their divorce is complete.
Is there a family home?
A family home is the property where a married couple ordinarily resided. If agreement cannot be reached as to who will occupy and own the family home, the court can make an order in relation to it, specifying who has the right to live there and for how long and what proportion of the home does each spouse own. A court can otherwise order that the house be sold and the proceeds divided equally or in whatever shares it considers fair. A DIY divorce would be more suitable to those that have already agreed on the future of the family home.
Do either of you have pensions?
After the family home, a pension is generally the next most valuable asset. Like any other asset, it may be divided between spouses in whatever proportion is appropriate. Where spouses have agreed in advance as to how any pensions will be divided a DIY divorce is perfect. However, if there is disagreement as to the appropriate division of the pensions, a DIY divorce may not be ideal. In many cases, the court will not grant a decree of divorce until there has been an agreement in relation to the parties pensions. If an agreement cannot be reached the Court may make a decision on your behalf.
Do you share a home with your spouse?
Given the economic climate of recent times, some separated spouses continue to live under the same roof, as a result of financial necessity. This does not preclude them from obtaining a divorce, though it may complicate matters. The court may accept that in certain circumstances spouses live apart from each other even though they are living under the same roof. The court will consider the evidence before it and you will have to establish that you have been living separate lives and essentially operating two separate households although you are both living under the same roof. The action of separating must involve an open and complete break from the marital relationship and the court will consider the following:
- The ceasing of sexual activity
- Living in separate rooms
- Operating separate bank accounts
- Not sharing meals
- Not providing household services
- Not sharing entertainment inside or outside the home
- Not representing to relatives, neighbours or friends that the marriage is continuing
- If the parties contend that they have separated even though they still live under the one roof they may have to give the court evidence of this. It is often difficult to prove this so it should be kept in mind that it will be ultimately the Judge’s decision.
Do you know the location of your spouse?
For applications where a spouse's current address is unknown, an ex-parte application will have to be made with the County Registrar of the Circuit Court, who will generally instruct the applicant to place an advertisement under Legal Notices of a national newspaper. This can cost between €999 and €3000 and so we strongly advise that all applicants make every effort to secure an address for their spouse before starting the proceedings.
Is your spouse living in another country?
There is no significant difference to the divorce procedure when a spouse lives in another country. However, the divorce may take up to two months longer to be finalised as the spouse is allowed additional time in order to respond to the proceedings. Depending on the court to which the application is submitted and in which country the spouse lives, a separate application may have to be made to allow the serving of the divorce documents outside the jurisdiction.