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.
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.
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