How do I qualify for a Divorce?

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25 years ago this year the Family Law (Divorce) Act 1996 was introduced following an historic referendum the previous year. It was enshrined into the Constitution that a Court had to grant a divorce to the spouses, if the Court was satisfied at the date of the institution of the proceedings,
i. the parties lived apart from one another for a period, or periods amounting to, to at least 4 out of the last 5 years,
ii. there was no prospect of reconciliation between the parties, and
iii. the Court considered proper provision in place for the spouses and the dependant members of the family.
Time Period
Following a further referendum in May 2019, where 81.2% of the electorate voted to remove the constitutional requirement for a defined period of separation before a Court may grant a divorce. The Government then introduced the Family Law (Divorce) Act 2019 and introduced the statutory requirement for a period of living apart for 2 out of the previous 3. This reduction in the period of time before a spouse can institute proceedings for a divorce ensures that couples can bring to a conclusion their financial and marital affairs in a shorter time period and often avoid the need for two separate sets of court proceedings.

What is living apart?
It was initially thought that parties had to be living in two separate locations for the time period in question, but In the McA v McA, a case in the year 2000, McCracken J held that the parties who lived in the same house but led very separate lives, had been living apart and said: “I do not think one can look solely at where the parties physically reside, or at their mental or intellectual attitude to the marriage. Both of these elements must be considered, and in conjunction with each other.”
During the recession that followed the Celtic Tiger, spouses finding themselves in both martial and financial difficulty have found that they could not afford to live in separate houses, but have effectively lived their lives as “lodgers” in the same house and gone about their lives as separate people. It is also noticeable in these time of Covid that parties, due to the fact that they cannot move out, or cannot find suitable accommodation to move to, are also living separate lives under the same roof. Such a set up is stressful on all parties, as communication can be difficult between the spouses and the children.
In these cases, the Applicant must refer to specific instances of how the parties have lived separate lives, and have not had any martial relations during the time period. Some Judges focus in on day to day activities, such as who prepared the meals, did the parties eat together, did the parties do their own laundry, did they take joint holidays.

Proper Provision?
This is the phrase in the law that refers to mainly financial arrangements between the parties, but also includes any custody and access arrangements. The Court must consider proper provision “having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law”.
In headline terms it means trying to ensure that both parties and the children have their accommodation needs met, there is sufficient income / maintenance for the children and spouses, any pensions that need to be apportioned, perhaps the sale of property and the division of the proceeds. There is a list of criteria set out in Section 20 of the Family Law (Divorce) Act 1996 that the court needs to weigh up before making the necessary orders.

Every family case is different, as no two marriages are the same and no two marriage breakdowns are the same. An experienced family law practitioner can guide a client through the process and ensure that all options are explored and how best to find an approach that suits the client, their children if applicable and how same can be achieved. Sometime is it necessary to look at where the client sees themselves at the end when the case is over, and the role of the solicitor is to see if they can get the client to that point.

If you have questions on family law, find your self at the point where you are thinking of calling time on your marriage and not sure where to turn then contact Máire McMahon, who has 20 years of family law experience can advise you in such situations. Máire can be contacted at 052 7441244 or click here to find out more about Máire Máire McMahon

What to do when you want to sell your home. Tips to make the transaction move more quickly.

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Home For Sale Real Estate Sign and Beautiful New House.

 

You have made the decision to sell your property. You have engaged an Auctioneer and placed the property on the market. Now you wait while the property is viewed and hopefully a buyer found, a price agreed and you can more on to the next stage of the sale process.

Don’t just sit back and wait, there are a number of things you can be doing to help the sale run smoothly when the time comes to issue contracts.

  • Talk to your Solicitor – make a decision on the solicitor’s firm you wish to act for you in the sale? Perhaps you may wish to deal with the same firm that bought the house for you, or perhaps you have heard good things about a local firm, or someone has come recommended to you. Contact the solicitor and tell them that your house is on the market. They will discuss the items below with you.
  • Where are your title deeds?
    Consider where the title deeds for your property are currently held. If the property was mortgaged, it is likely they are being held by a Bank. It can take several weeks to get title deeds from a bank so now would be a good time to mention this to your solicitor. They will need an original signed authority from you to take up your title deeds from your bank and you can begin this process now to speed up the issuing of contracts once a sale is agreed.
  •  Compliance with planning and building regulations:
    Generally, there will be some planning documents with your title deeds from the time that you purchased the property. However, if you have completed any work on the property since you originally purchased it, such as an extension or conversion of a garage/ attic, it is quite likely that you will need up to date Certificates of Compliance or Exemption from planning permission and building regulations. In some instances, you may even need to apply for retention planning permission which can take several months.

Talk to your solicitor about any work you have done to the property and they should be able to guide you as to whether you will need     any up-to-date certificates from an Architect / Engineer.

  • Property Tax Receipts:
    There are a number of difference receipts that you will need to price to a prospective purchaser when selling a property. For residential properties you will need the following:
  1.  A complete Local Property Tax property History from 2013 up to date confirming that the LPT has been paid for the property for each year.

2. Evidence of payment of the Household Charge 2012.

3. Either a Certificate of Exemption or Certificate of Discharge from the non-principal private residence charge (NPPR years 2009 to 2013).

This is different to the Local Property Tax and you should obtain same from the Local Authority where the property is situated. This was a charge due on second homes before the introduction of the LPT, and even if the property was not liable for the charge, you still need to provide a Certificate of Exemption.

Each Local Authority has different requirements so you should check their website to see what you will need to provide to get your certificate.

4. Certificate of Registration with Protect our Water in respect of the septic tank (if applicable). If you have a septic tank but have not registered it previously you can do so on-line on Protect our Water’s website.

For commercial or mixed-use properties, you will also need to provide the following:

1. Up to date statement and receipt for commercial rates.
2. Up to date statement and evidence of payment of commercial rates from the Local Authority.
3. Up to date statement and evidence of payment of any water charges.

  • Rental properties:
    If the property is currently let or was let at any time in the previous 2 years, you need to provide certain information to the new purchaser, in particular if the property is located in a designated rent pressure zone.

Ideally you should provide your solicitor with a copy of the latest Lease together with details of any rent review, any notices that have been served by either you or the tenant and details of any disputes. If there is currently a tenant in the property and you want them to vacate before completing the sale, you should check how much notice they are entitled to and how to correctly serve this notice on them. There are very good guidelines and information available on the PRTB website.

Bear in mind that if you are selling a property that is not your principle place of residence, that you will have to consider capital gains tax. This is a tax that is payable if the sale price is more than the price you paid for the property. A solicitor will be able to advise you whether or not CGT applies and will advise you contact an Accountant to discuss it further.

  • BER Certificate and Advisory Report:
    You will need to provide a Building Energy Rating Certificate and Advisory Report to your purchaser. Normally, the Auctioneer will request this before putting the property on the market for sale, so check with them to see if this has already been attended to. They will be able to give you a copy which you can give to your solicitor along with the property tax receipts.
  • Management Company and MUD Act Requisitions:
    If the property is part of a managed development, in particular if it is an apartment, your solicitor will need to obtain information from the Managing Agent which are known as replies to the MUD Act Requisitions. Managing Agents usually charge a fee for providing this information which includes up to date accounts, details of the insurance policy, details of the budget and service charge, and house rules. You should get an up-to-date statement for the Management Company fees together with contact details for the managing agent and provide these for your solicitor. This will allow them to request replies to the MUD Act Requisitions quickly once a sale is agreed.

Every property and every property sale is different and this is not an exhaustive list. However, it is a very good place to start and should help move the sale process for you whenever a buyer is found for your property.

If you are thinking of selling your property and have any questions please feel free to contact our Conveyancing team on 062 61288 (Cashel) or 052 7441244 (Cahir).