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SCENARIO 1—THE FITZPATRICKS
Veronica and Stephen Fitzpatrick were married on 21 February, 12 years ago. They have two children,
Killian born on 23 November who is 6 years old, and Sabrina born on 15 July who is 10 years old. Both
children are at St Brigid’s National School, in Ballynacompo, County Kilford.
Stephen is a store man at Town & Country Hardware, Unit 56 Kilbogget Industrial Estate,
Ballynacompo, County Kilford. He has worked there for twenty years. He started with them straight
from school.
Veronica is a Secretary/Receptionist at Lights Electrical, 20 High Street, Ballynacompo. She started
work there 12 years ago. The family live at 84 Gleneagle Estate, Ballynacompo, County Kilford.
Veronica and Stephen bought the property 10 years ago from the County Council under a shared
ownership scheme.Both parties seek legal advice and consult different solicitors.
Veronica’s instructions to her solicitor:
She was born on 16 September in Kilford Town, Co Kilford. She is 35 years old. She lives at 84
Gleneagle Estate, Ballynacompo, County Kilford.
She is a Secretary/Receptionist at Lights Electrical, 20 High Street, Ballynacompo, tel. 0131 230113.
She started work there on 1 March, 12 years ago. She works from 9.00am–5.00pm Monday to Friday.
She earns €465.38 gross per week. She also gets her uniforms.
She and Stephen entered into a shared ownership scheme with the Council for their house at 84
Gleneagle Estate. They still owe money on the house. Their car is registered in Stephen’s name but she
helped pay for it. They also have savings with the Credit Union of €15,000 to which they each contribute
€50 per month.
Her relationship with her husband has broken down completely and for a long time they have not really
had a proper marriage. For ages, she has felt isolated and unappreciated at home. Stephen is always
critical of everything she does. He never helps around the house nor will he take any responsibility for
the children, saying that that is her place.
She has been friends with Colm Redmond, a colleague, for a number of years and he has always been
kind to her. In December, he found her in tears because Stephen, as usual, was making a song and dance
about her going to the office party. He is very jealous and never lets her go anywhere without him.
At Christmas time, she took the children to her parents’ home at 7 The Croft, Willow Park, Kilford
Town, County Kilford. Whilst there, she met Colm and they spent a great deal of time together with the
children having a fine time. This was the first time in years she was truly happy. The children also were
more relaxed and enjoyed their holiday. Colm has always been very understanding and considerate of
her and makes her feel so special. What started out as a friendship has developed and she is very much
in love with Colm and during this holiday, their relationship developed into a sexual relationship.
In late January, she and Stephen agreed to go to counselling to see if they could sort things out between
them. They quickly realised that neither of them wanted to go on with the marriage and they agreed to
separate. They agreed that the children will stay with her in the house until they are grown up, he will
not pay her any money, he will give her €80 per week per child, and the children will spend every
alternate Christmas and Easter and every second weekend from 5.30pm on Fridays until 6.00pm on
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Sundays with him. The other holidays they will sort out as they go. Also, Stephen would keep the
children on his VHI and that he would pay half the payments for the house.
He moved out the house in early April.
Stephen’s instructions to his solicitor
Veronica, his wife, has been having an affair with Colm Redmond, an electrician at her work. As far as
he is aware, it has been going on since Christmas. At Christmas, she and the children went to visit her
parents in Kilford Town. On their return, the children told him they had all spent a great deal of time
with Colm.
In January, they agreed their marriage was in serious difficulty and decided to seek counselling. As a
result, they have agreed it would be best for the children and themselves if they separated. They have
worked out what they want. The children will stay with Veronica in the house until they are grown up,
he will not pay her any money, he will give her €80 per week per child, and the children will spend
every alternate Christmas and Easter and every second weekend from 5.30pm on Fridays until 6.00pm
on Sundays with him. The other holidays they will sort out as they go. He will also keep the children
on his VHI and will pay half the payments for the house.
He moved out of the house and went to his parents in early April. Stephen furnished the following
personal information:
He was born on 30 March in Kilford Town, County Kilford. He is 37 years old. He is currently living
at 9 Corbawn Place, Ballygreen, Co Kilford with his parents.
He is a storeman at Town & Country Hardware, and works from 7.00am-3.30pm Monday to Friday.
He earns €691.59 gross per week.
He also tells you that he has a car, which is paid for, and savings with the Ballynacompo Credit Union
of €11,000.
SCENARIO 2—THE O’SHEAS
Peter and Margaret were married on 17 April in Celbridge, 25 years ago. Peter is the marketing manager
with SAPI. He has held this position for 10 years. Before being appointed marketing manager, he
worked as a salesman with the company. He joined the pension scheme and group VHI and Life
schemes when he started with the company thirty-one years ago.
Margaret is a qualified primary school teacher. She teaches at St Mary’s School, Church Street,
Ballynacompo, County Kilford.
They have three children:
Eamonn was born on 11 January. He is 22 years old. After leaving school, he took a few years off
working in Australia and has recently returned home to commence his apprenticeship as a motor
mechanic in the autumn.
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Fintan was born on 21 July. He is 19 years old. During the summer, he worked as a waiter at the Manor
Hotel about 3 miles outside the town. He did well in his Leaving Certificate and was accepted at UCO
College in Dublin to do an engineering degree. He will start his course in the autumn.
Mary’s birthday is on 25 November. She is 15 and has just completed her Junior Cert. Mary loves her
sport and dancing. She plays tennis for the county.
They live at 34 Sea Gull Lane, Ballynacompo, County Kilford. There is a mortgage of €250,000 on the
property that has a current value of €440,000. They also own a holiday home at Cahir Point, County
Kilford valued at €250,000. The property is mortgage free, the money required for its purchase having
been drawn from the family home. The property is registered in both their names.
Both parties have sought legal advice.
Peter O’Shea’s instructions to his solicitor
His wants a divorce as he wants to marry his girlfriend, Theresa.
His wife has told him he can do as he likes but she wants him out of the house; sole custody and
guardianship of the children; transfer of all the properties into her name, all household furniture and
effects; for him to take sole responsibility for the payment of the mortgage; maintenance for the children
and herself, and for him to pay all the children’s education costs. She also wants a portion of his pension
and for him to pay all legal costs.
He has been having an affair with his secretary Theresa for the past five years. There has been no
marriage relationship between himself and Margaret for a long time. For years, he has not been
interested in the marriage and has withdrawn from family life. He is happy to get a separation but
Margaret cannot have everything and as she is working, she should help support the family as well.
He was born on 4 May. He is 54 years old. He is the marketing manager with SAPI. He has held this
position for 10 years. Before that, he worked as a salesman with the company. He joined the company
pension scheme when he started with the company after completing his B.Comm at UCO College 32
years ago. He also joined the company’s group Life and VHI schemes. He earns €6,575 gross per month.
Margaret was born on 24 January in Kilford Town. She is 50 years old. She is a qualified primary school
teacher. She has always worked during their marriage except for when the children were born. He thinks
she earns about €4,000 gross a month.
He is currently living with Theresa in her apartment at 19 Arundel Court, Ballynacompo as his wife has
“kicked him out” of the house.
Both he and Margaret have their own cars, which he paid for, and he has always paid the mortgage and
all the household expenses. They have some savings, a PIP educational policy for the children and a
small portfolio of shares. Last year his mother gave him €30,000, which he has invested. Margaret
knows nothing about this money and he wants to keep it that way.
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Margaret O’Shea’s instructions to her solicitor
She wants her husband Peter out of the house permanently; sole custody and guardianship of the
children; the house transferred into her name, all household furniture and effects; for Peter to take sole
responsibility for the payment of the mortgage; maintenance for the children and herself; for him to pay
all the children’s education costs; for him to pay all legal costs; and a portion of his pension.
Their relationship has been very strained over the last few years and their relationship has now broken
down completely. For a long time now, Peter has been working very long hours and playing a lot of
golf. He takes no responsibility for anything in the house or for the children. Whilst they lived in the
same house, they have not lived together as husband and wife for about 18 months.
Things came to a head a few weeks ago. Over the Paddy’s Day weekend, she took the children to see
her mother-in-law who has been very ill. When she came back, Peter was on a business trip. Her
neighbour mentioned that Peter had done a lot of entertaining whilst she was away. She found this
strange as he never was one for having people round. The other day he told her he wanted a divorce, as
he had found someone who really understood him. She also learnt that whilst she was away Theresa,
his girlfriend, who is a junior secretary at his work, had stayed in Margaret’s house and that the business
trip was in fact two weeks’ holiday with Theresa. Margaret is especially angry as she says he told her
he did not have the time for a family holiday this year.
Margaret was so angry she told Peter “to get out”. He moved out two weeks ago and is living with
Theresa and her son Gerard.
Both she and the children are living in the family home at 34 Sea Gull Lane, Ballynacompo.
She is a qualified primary school teacher and teaches at St Mary’s School, Church Street,
Ballynacompo. She has worked throughout the marriage except for maternity leave entitlements when
the children were born. She earns €4,650 gross per month.
She has a car, which is paid for. Peter also has his own car. They have some savings, a PIP educational
policy for the children, a small portfolio of shares, and she has just started a PSRA policy paying €100
a month.
Peter earns about €6,000 gross per month and he has always paid the mortgage on the house and all
household accounts. Her salary has meant that they could both have cars, a good holiday each year and
the children could have all the extras.
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PREPARATORY WORK—TO BE COMPLETED BEFORE THE TUTORIAL
Exercise 1
Scenario 1 – The Fitzpatricks
Read the information furnished by Veronica and Stephen and prepare a list of the further information
and documentation you require from your client before you will be in a position to advise on the
proposed terms of the agreement?
Complete this exercise in respect of both Veronica and Stephen.
Please ensure that you have your preparatory work available on your iPad for use during the tutorial.
Information and Documentation required from Veronica and Stephen:
• KYC Documentation (photo ID and a recent utility bill for AML purposes)
Marriage:
• State Marriage Certificate & date of marriage
• Maiden name of Veronica
• Ascertain if either party was previously married
• Birth Certificates of Children
• Ascertain the date on which the parties began living apart so that it can be stated in the separation
agreement (this is important if the parties want to divorce at a later stage and if a pension
adjustment order is to be made at a later time so that the value of the fund could be determined
on the date of separation rather than divorce)
• Ascertain when the parties feel that the marital relationship broke down
Property:
• Value of the family home
• Mortgage statement showing lending institution and amount owing
• Stephen agrees to pay half the payments so check that this is within his means
• Check that Veronica has the means to cover the other half of the payments
• All other information and documentation relating to the house, e.g. copy deeds or folio, check the
identity of the registered owner, check if the parties are co-owners (joint tenants or tenants in
common) and the shared ownership arrangement with the County Council;
• Ascertain how house contents are to be divided
• Ascertain what are they going to do with the house when the children are “grown up” (i.e. retain
it, sell it or transfer to one party’s sole name by buying out the other party)
• Has either party inherited anything?
• Do they own any other properties?
Bank accounts:
• Check if bank, credit card and credit union accounts are in joint names or sole names
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• Check contribution each party makes to the various bank, credit card and credit union accounts
• Bank, credit card and credit union statements
• Credit Union savings (there is a discrepancy between Veronica and Stephen’s accounts of the
amount of the Credit Union savings and as to who has contributed to it)
Assets:
• Get valuations of all assets and ensure all assets held by either party are disclosed
• Car insurance and tax information
• Evidence of Veronica’s contribution to buying Stephen’s car
• Obtain a statement of any expenses and/or liabilities either party currently has
• Get particulars of any pensions in place (NB. If there is a pension in place, a separation agreement
is not appropriate and the parties should seek a judicial separation instead)
• Ascertain if the parties wish to waive succession rights and extinguish inheritance rights (NB.
Under the Succession Act 1965, spousal rights are not terminated by separation; however, it
would be normal to preserve separation rights in a separation agreement)
Work:
• Recent payslips
• P60 for the past 3 years
• Holiday requests from work
• Custody and access arrangements:
o Collection of children from one parent to the other
o Appropriate access times in relation to parent working hours
o Ascertain which year each parent is having the children for Christmas and Easter, e.g.
Veronica gets Christmas 2016, Stephen gets Easter 2017 and then alternate in successive
years
o Ascertain how many days Christmas/Easter covers, e.g. is Christmas Eve and/or Stephen’s
Day included
o All of the above should be specified clearly in the separation agreement
Maintenance:
• Ascertain if Stephen has the means to pay the agreed maintenance of €80 per week per child
• Ascertain the approximate amount of the children’s current expenses
• Check that €80 per week per child is an appropriate amount for Stephen to pay in child maintenance
(seems very high)
• The separation agreement should state that the maintenance payment is to be furnished on a
particular day of the week to a particular account
• In addition to weekly maintenance payment, the primary carer should seek contribution of 50% of
vouched school, medical and dental expenses from the other parent - primary carer to furnish
receipts and seek reimbursement from other parent
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- Ascertain what “grown up” means in relation to the children (i.e. does it mean 18 or under 23 if in
full time education)
- Ascertain if one party is financially dependent on the other
Exercise 2
Prepare a list of the information, if any, you would seek from the other party’s solicitor? Complete
this exercise in respect of both Veronica and Stephen.
2.1 Affidavit of Means
If a separation agreement is entered into by the parties it should be based on full financial
discourse. The courts will not hesitate to remedy a separation agreement which was concluded where
one party withheld relevant financial information. (N v O’D)
Thus before the signing of any agreement, both parties should complete Affidavit of Means and have
at least one year of vouching documentation to accompany it.
Affidavit of Means contains five schedules
• (i) First Schedule: All assets, whether held in the Applicant/Respondent’s sole name or jointly
with another, held legally or beneficially, the manner in which the assets are held, whether they
are subject to a Mortgage or other Charge or lien and such further and other details as are
appropriate.
• (ii) Second Schedule: All income from whatever source(s). Income should be vouched by
payslips and P60s (account for last 3 years if self-employed).
• (iii) Third Schedule: All debts and/or liabilities and the Pension Institutions to which such debts
and/or liabilities are due. Includes mortgages (each property should be itemised), term loans,
car loans, credit cards, tax liability, personal guarantees, indemnity, estimate of legal costs, etc.
• (iv) Fourth Schedule: A detailed list of the outgoings of the parties on a weekly, monthly or
yearly basis, e.g. utilities, maintenance, health and life assurance, etc.
• (v) Fifth Schedule: Full details of nature of Pension Scheme, benefits payable thereunder,
normal pensionable age and period of reckonable service.
At the very minimum, there should be full vouching of every entry on the Affidavit of Means for a
period of 12 months prior to the issuing of proceedings. Effectively this means 12 months’ statements
in respect of:
• - Current accounts;
• - Savings accounts/deposit accounts;
• - Mortgage accounts;
• - Credit union accounts;
• - Credit card accounts;
• - Company bank accounts if applicable;
• - Utility bills;
• - Medical/dental receipts;
• - Income tax returns
Note: Pensions cannot be dealt with under a Separation Agreement as such an agreement is only
binding between the two parties and imposes no obligations on the trustees of a pension scheme. If
Veronica and Stephen wish to alter a pension they will need to apply for a pension adjustment order
from the court.
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2.2 Affidavit of Welfare Don’t think this is required for a Separation Agreement where parties
have agreed terms re visitation and custody for the children but have included what it entails
just in case.
The Schedule to an Affidavit of Welfare contains the following:
i. Part 1 – Details of the children born to the applicant and the respondent or adopted by them, and
details of other children of the family or to whom either of the parties stand in loco parentis
(Forenames/Surnames/Date of Birth)
ii. Part 2 – Arrangements for the children of the family - Home Details including
1. The address at which the children live;
2. Details of the number of living rooms, bedrooms etcat the addresses in (a);
3. Is the house rented or owned and, if so, name the tenant(s) or owner(s);
4. Is the rent or mortgage being regularly paid and, if so, by whom?
5. The name of all other persons living with the children, either on a fulltime or part time
basis and their relationship to the children, if any;
6. Will there by any change in these arrangements, and if so, give details.
iii. Part 3 – Education and Training Details including:
1. Names of the school, college or place of training attended by each child;
2. Any special education needs;
3. Is the school/college fee paying? If so, how much are the fees? Are the fees paid regularly
and if so, by whom?
4. Will there by any change in these circumstances, and if so, give details.
iv. Part 4 – Childcare Details including:
1. Which parent looks after the children from day to day?
2. Details of work commitments of both parents;
3. Does someone look after the children when the parent is not there?
4. Who looks after the children during school holidays?
5. Will there by any change in these circumstances, and if so, give details.
v. Part 5 – Maintenance;
vi. Part 6 – Details of Contact with the Children;
vii. Part 7 – Details of Health
viii. Part 8 – Details of Care and other Court Proceedings.
Exercise 3
Scenario 2—The O’Shea’s
Read the information furnished by Margaret and Peter and prepare a note firstly for Peter and then for
Margaret on the requirements for an order of judicial separation; the grounds upon which they could
rely for an order of divorce; the consequences of each order and your advice in their particular
circumstances.
Please ensure that you have your preparatory work available on your iPad for use during the tutorial.
Requirements for an order of judicial separation
Always ask if there is a separation agreement in place.
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NB. It was held in P’OD v A’OD [1998] 1 ILRM 543 Supreme Court, that a separation agreement is a
bar to subsequent proceedings for judicial separation. Therefore, if a Separation Agreement is in place,
the parties cannot look for a Judicial Separation. Instead, they must wait until they fulfil the criteria for
divorce and during the intervening period the parties cannot seek the extensive range of ancillary
financial and property reliefs available under the Family Law Act 1995 (but they can still bring
maintenance, guardianship, custody and access applications during the intervening period) [page 56].
If you apply for divorce after a deed of separation the court may look to the deed as the grounds for
divorce.
Law and relevant issues laid-out as follows, scenario-specific advice is laid-out below (p.13):
All applications for decrees of judicial separation must be made in either the Circuit Court or High
Court in the first instance. Section 2 of the Judicial Separation and Family Law Reform Act 1989
specifies six grounds upon which the court may grant a decree of judicial separation. A decree can
be granted on any one or more of these grounds once proved on the balance of probabilities (section
3(1) of the 1989 Act):
i. The respondent has committed adultery
Section 1(1)(a) of the 1989 Act
This ground is difficult to prove but can be inferred from the circumstances. While adultery may be
cited as the basis for a judicial separation application it is not seen as a matter to be penalised per se.
An advantage of this ground is that there is no waiting time period before the application for judicial
separation can be made.
Note: an applicant cannot rely on his/her own adultery; rather the other party has to raise it.
ii. The respondent has behaved in such a way that the applicant cannot reasonably be expected
to live with the respondent
Section 2(1)(b) of the 1989 Act
The test is an objective one and includes both mental and physical cruelty.
The character of the conduct must be grave and weighty. The court will determine if an individual can
reasonably be expected to endure the behaviour of his/her spouse. An advantage of this ground is that
there is no waiting time period before the application for judicial separation can be made.
iii. There has been desertion by the respondent of the applicant for a continuous period of at least
one year immediately preceding the date of the application
Section 2(1)(c) of the 1989 Act
The desertion must be continuous but no account is to be taken of one or more periods totalling six
months when the parties have resumed living together. However, the parties must be living apart at the
date of application for judicial separation. Desertion also includes constructive desertion where the
conduct of one spouse gives the other spouse just cause to leave the family home.
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iv. The spouses have lived apart from one another for a continuous period of at least one year
immediately preceding the date of the application and the respondent consents to a decree being
granted
Section 2(1)(d) of the 1989 Act
The one year period must be continuous but no account is to be taken of one or more periods totalling
six months when the parties have resumed living together.
v. The spouses have lived apart from one another for a continuous period of at least three years
immediately preceding the date of the application
Section 2(1)(e) of the 1989 Act
The three year period must be continuous but no account is to be taken of one or more periods totalling
six months when the parties have resumed living together. There is no onus of proof on the applicant to
show that the respondent was at fault.
vi. The marriage has broken down to the extent that the court is satisfied in all circumstances that
a normal marital relationship has not existed between the spouses for a period of at least one year
immediately preceding the date of the application
Section 2(1)(f) of the 1989 Act
This is the ground under which most decrees for judicial separation are granted and should be pleaded
in every application as it is a “catch all” category. There is no definition of what a “normal marital
relationship” is and fault is not a prerequisite. It has been stated that there must be a “loss of an essential
ingredient of marriage” (TF v Ireland [1995] 1 IR 321). The conduct of spouses is usually not taken
into consideration, but if the conduct was “obvious and gross” such that it would be unjust to disregard
it then the court can have regard to this conduct. The spouses may still be living together under this
ground for judicial separation.
Section 3(1) of the 1989 Act states that if any of the 6 grounds outlined above are proven on the balance
of probabilities the court will grant a decree of judicial separation on condition that it is satisfied that:
1. (a) The welfare of any dependent children of the marriage is properly catered for (section 3); and
2. (b) Both the solicitor for the applicant and for the solicitor for the respondent have complied with
the obligations imposed on them as to discussing reconciliation, mediation and negotiation of a
separation agreement (sections 5 and 6).
Welfare of the Children
The court must be sure that proper provision is made for any dependent child before a decree for judicial
separation will be granted (Section 3(2)(a) of the 1989 Act). A dependent child is defined as any person
under 18 years of age, or if he/she has attained that age he/she must be under 23 years of age and
receiving full time education at an established educational institution, or a child with a mental or
physical disability such that the child cannot maintain himself/herself fully.
Welfare under the 1989 Act comprises the religious, moral, intellectual, physical and social welfare of
the child.
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In the case of V.S. v. R.S., Lynch J stated that unless the court is satisfied on the balance of probabilities
that it can make proper provision for the dependent child of the marriage pursuant to section 3(2) of the
1989 Act, the court is precluded from granting a decree of judicial separation.
Section 16 of the Family Law Act 1995 states that, when making an order under this Act, the court shall
seek to ensure that adequate provision is made for any spouse and dependent child, having regard to all
the circumstances of the case.
Solicitor’s Obligations
Solicitors are obliged to advise clients as to the possibility of alternative dispute mechanisms
(reconciliation and mediation), the services available in this regard, provide the names and addresses of
persons qualified to effect a mediation, e.g. an independent trained mediator, and discuss the possibility
of effecting a separation by means of a deed or agreement in writing rather than by issuing court
proceedings.
Not only must the solicitors for both parties discuss such matters, but they must also sign a
separate certificate stating that they have complied with the provisions of the 1989 Act, section 5
(solicitor for applicant) or section 6 (solicitor for respondent) as the case may be. If no certificate is
available, then the court may adjourn proceedings until a discussion has taken place.
Grounds upon which they could rely on an order for divorce
Pursuant to section 38(1) of the Family Law (Divorce) Act 1996, both the Circuit and the High Court
have original concurrent jurisdiction to hear divorce proceedings.
The grounds for divorce are set out in section 5(1) of the Family Law (Divorce) Act 1996:
i. 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 but no account
is to be taken of one or more periods totalling six months when the parties have resumed living together.
The parties can be living apart whilst residing under the same roof if detailed evidence that two separate
households exist can be adduced, e.g. independent living areas, separate outgoings, etc;
Now following a referendum on 24 May 2019 -s.3(1)(a) of Family Law Act, 2019 – came into operation
in December 2019 by S.I. no. 585/2019 – now 2 of the last 3 years.
ii. There is no reasonable prospect of reconciliation between the spouses; and iii. Such provision as
the court considers proper having regard to the circumstances exists or will be made for the spouses and
any children of either or both of them and any other person prescribed by law.
Note: this requirement is reiterated at section 20(1) as a factor to be determined when the court makes
an order under the 1996 Act.
All of these grounds must be satisfied before a decree of divorce can be granted. There is no reference
to conduct of parties, so there is a complete absence of fault in Irish divorce law (however conduct may
be relevant to the making of ancillary orders as it is stated at section 20(2)(i) as a factor to be considered
in making such an order).
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Solicitors’ Obligations in Divorce Proceedings
Solicitors are obliged to advise clients as to the possibility of alternative dispute mechanisms
(reconciliation and mediation), the services available in this regard, provide the names and addresses of
persons qualified to effect a mediation, e.g. an independent trained mediator, and discuss the possibility
of effecting a separation by means of a deed or agreement in writing rather than by issuing court
proceedings.
Not only must the solicitors for both parties discuss such matters, but they must also sign a
separate certificate stating that they have complied with the provisions of the 1996 Act, section 6
(solicitor for applicant) or section 7 (solicitor for respondent) as the case may be. If no certificate is
available, then the court may adjourn proceedings until a discussion has taken place.
In relation to the present question, it appears that Peter and Margaret have not lived apart for a period
of at least 2 years. Although Peter’s affair with Theresa has been ongoing for five years, and thus could
provide evidence that no marital relationship has existed between Peter and Margaret for this length of
time, despite living in the same house, Margaret states that they have not had a normal marital
relationship for “18 months”.
The consequences of each order
Effects of a decree of Judicial Separation:
• It is no longer obligatory for the spouses to co-habit, however the couple remains legally married.
• The decree permits the court to make various ancillary orders pursuant to Part II of the 1995 Act.
• Succession rights are not extinguished but the court can make extinguishing orders under s.14 of
the 1995 Act.
• The court may also declare one spouse to be unfit to have custody of a dependent child but such a
declaration is incredibly rare.
Effects of a decree of Divorce:
• The marriage is dissolved and both parties are free to marry again (1996 Act, s10(1)).
• A decree of divorce will not affect the right of a father or mother of an infant to continue to be
joint guardians of any relevant children (1996 Act, s 10(2)).
• A divorced party ceases to be a “spouse” for the purposes of the Succession Act 1965 and the
Family Home Protection Act 1976 but does retain his/her rights to bring proceedings under the
Domestic Violence Act 1976 or the Domestic Violence (Amendment) Act 2002 against a former
spouse.
• Taxation obligations of the parties are affected e.g. income tax, capital gains tax, probate and stamp
duty.
• The granting of a decree of divorce does not deprive a spouse of his/her right to claim widow’s/
widower’s pension, the one parent family payment, or the right to continue to receive deserted
wife’s allowances or benefits.
• The decree permits the court to make various ancillary orders pursuant to the 1996 Act.
• Can still acquire co-habitation rights after a decree of divorce if the parties continue to live
together.
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Costs
• These are usually split 50/50 although sometimes people pay their own costs. This is
different where there is gross misconduct as divorce is “no fault” in Ireland. The case of T
v T is one example of where a judge thought there was sufficient misconduct to award costs.
Advice for this scenario:
•
•
•
•
•
•
•
In this case, as the above information illustrates, the parties do not fulfil the “no fault”
criteria for the granting of a decree of divorce as they have not been living apart for 2 of
the previous 3 years and it is suggested that they would not fall under the exception
whereby they could be considered living apart even though they were under the same
roof.
The advice I would offer both parties would be that a judicial separation would be the
best option. Peter has been having an affair for the past 5 years and is currently living
with Theresa, the lady with whom he has been having an affair. This is sufficient evidence
to show that Peter has committed adultery under the first ground in the 1989 Act
(however, as mentioned above, Margaret would have to raise this ground as Peter cannot
rely on his own adultery to get a judicial separation).
Furthermore, or in the alternative, it could be claimed that under section 2(1)(f) of the
1989 Act the relationship has broken down so that a normal marital relationship has not
existed for at least a year preceding the application.
Before the court will grant the decree of judicial separation, the court will need to be sure
that the children will be sufficiently provided for but it has the power to make ancillary
orders it sees fit. Due to the fact that the couple has substantial assets, it is submitted that
the court has various options available to ensure that proper provision is made for the
dependent children.
Furthermore, when advising Margaret, it would be prudent to inform her that there needs
to be an element of compromise and co-operation in a judicial separation. Her requests
could be seen as excessive. I would need to ensure that Margaret has realistic expectations
as to how the court will ascertain that proper provision is to be made through any ancillary
orders that the court may make.
Moreover, Peter has a pension and Margaret has a PRSA so a separation agreement would
not be appropriate as the pension trustees would not be bound by it. Judicial separation
proceedings will be required so that a court pension adjustment order will be binding on
the trustees of the pensions (and so, in subsequent divorce proceedings, the court can
make any pension adjustment order effective from the date of the judicial separation).
If Peter was my client, I would inform him that he will have to make full financial
disclosure about the investments that he does not want Margaret to know about.
Family Law – Tutorial 2
14
TO BE COMPLETED DURING THE TUTORIAL:
Scenario 1—The Fitzpatricks
Exercise 4
Discussion of your preparatory work.
Exercise 5
Draft the terms of a separation agreement on behalf of your client (Veronica or Stephen) to give effect
to the agreement the parties have worked out. [Reference should be made to the DSBA Draft Separation
Agreement]
A separation agreement is a legally binding contract by which the parties agree to live separate and
apart. This is the vehicle which allows the parties to agree other fundamental issues relating to their
separation. A separation agreement should contain the following provisions:
1. Non-Molestation and Agreement to live Apart (Clause 2.1 and 2.2 of DSBA SA)
There must be an agreement to live apart, releasing the spouses from the duty to cohabitate. This clause
should list the date on which the parties began to live apart (important for a subsequent divorce).
“The Husband and the Wife shall each live separate and apart from and free from the marital control (if
any) of the other and neither the Husband nor the Wife shall henceforth, in any manner, annoy, disturb
or otherwise interfere with the other in his or her manner of living or in his or her profession or business
or with the other’s friends, relations or acquaintances, or use any force, violence or restraint on or to the
person of the other, to the intent that each may live henceforth as if he or she were sole and unmarried
without restraint or correction of the other.
Neither the Husband nor the Wife shall visit, or be, or stay in any place in which the other is for the
time being resident save at the express invitation of the other.”
2. Guardianship and Custody and Access Provisions (Clause 3.2 of DSBA)
This clause should state the arrangements as to access and custody, the dates and times as agreed
between the parties.
“The Husband and the Wife are the joint guardians of the children. The parties shall have joint custody
of the said children, day-to-day care and control of the children and primary place of residence shall be
with the Wife. The Husband to have the following access/or in the alternative the Wife shall have sole
custody of the children and the Husband shall have access to the children as follows: The children shall
spend every second weekend from 5.30pm in Friday until 6,00pm on Sunday with the Husband.
The children will also spend every alternate Christmas and Easter with the Husband. Christmas means
from the 23rd of December until the 27th inclusive and Easter means from Holy Thursday until Easter
Monday inclusive”
3. Maintenance/ Financial Payments and Support Provisions (Clause 4.1, 4.3 and 4.9 of
DSBA SA)
Note – as separation usually involves the requirement for two residence, there is usually a decrease in
the overall standard of living.
Child maintenance ceases when the child becomes non-dependent.
Family Law – Tutorial 2
15
The execution of a separation agreement does not preclude a spouse having recourse to court by seeking
a maintenance order. However, s.20(3) of the 1996 Act states that in determining provision for spouses
and children, the court should have regard to any separation agreement.
“The Husband (hereinafter called “the paying party”) will pay to the Wife (hereinafter called “the
receiving party”) the sum of €640 per month for the support of the receiving party and the children
being €0 for the receiving party and €640 for the children. The first payment shall be made on the 29
day of January 2021 and shall be paid on each subsequent day of each subsequent month thereafter by
Standing Order/personally/by cheque/sent by registered post/prepaid ordinary post/postal order into the
receiving party’s bank account at being current account number Sorting Code Number. €80 Euro per
child per week = 80 x 2 x 4 = €640 total per month.
The maintenance payable in respect of the children shall cease to become payable upon each child
attaining the age of 18 years or if a child has attained that age and is still attending at a full time
University, College, school or other educational establishment, upon such child completing his or her
full time education or attaining the age of 23 years whichever is the earlier. Maintenance in respect of
any one of the children shall also cease in the event of the death of the paying party or the receiving
party or that child, or in the event of the Courts making a Maintenance Order in respect of the children”
The Husband will further pay the Wife one half of the monthly payments due for the family home
situated
at
84 Gleneagle Estate, Ballynacompo,
County Kilford owed
under the shared
ownership County Council scheme on the 29th day of each month” Might make more sense to include
this last bit under the Property section below. No figure given for this.
The Husband shall pay all subscriptions necessary to insure the children with the Voluntary Health
Insurance scheme for in-patient semi-private hospital treatment on Plan or its equivalent at the Scheme’s
recommended premium for such treatment. The Wife shall be responsible for all medical expenses for
the children up to the minimum sum which is paid by the Scheme and shall furnish to the Husband
immediately on request, all bills, accounts and receipts relating to any expenses which may be claimed
from the Scheme pursuant to this Clause” Husband keeps children on VHI scheme
4. Property Clauses (7.7.1 - 7.3.4 of DSBA SA)
This clause should deal with the ownership of the family home and other marital assets. The current
way it is drafted is to allow Veronica use the family home until the children are no longer dependent
after which they both agree to sell the family home and split the proceeds.
“The Husband and the Wife hereby acknowledge that the family home situate at
84 Gleneagle Estate, Ballynacompo, County Kilford is held in the joint names of both the Husband and
Wife.
The Wife shall enjoy exclusive possession of the family home until each child attains the age of 18
years or if a child has attained that age and is still attending at a full time University, College, school or
other educational establishment, upon such child completing his or her full time education or attaining
the age of 23 years whichever is the earlier.
Upon the right to exclusive possession of the Wife expiringThe Husband and the Wife hereby agree
that the family home shall be sold by way of private treaty/or auction for a minimum reserve figure of
€X . Any offer received below this sum shall be considered by the Husband and the Wife and they shall
take into account the recommendation of the Auctioneer and it is hereby agreed that no reasonable offer
shall be refused.
The Husband and the Wife consent to the sale of the Family Home at pursuant to Section 3 of the Family
Home Protection Act, 1976 and the Husband and the Wife covenants to sign all necessary documents
Family Law – Tutorial 2
16
to give effect to the sale. The foregoing consent is agreed by the parties to be a general consent in
writing for the purposes of Section 3 (9) of the Family Home Protection Act, 1976 as inserted by Section
54 (1) of the Family Law Act, 1995.
The net proceeds shall be divided between the Husband and the Wife in equal shares, one half share to
each after deduction of the following:
- All legal costs of both parties’ solicitors and Auctioneer’s fees incurred in respect of the sale.
- The monies necessary to discharge the mortgage on the Family Home in favour of a Building
Society (or Bank) or County Council.
- Any outstanding utilities or other household debts incurred up to the date that the parties vacated
the family home.
The parties further agree that all savings held by the Husband and Wife whether jointly or individually
including but not limited to the Balance of the Credit Union Account shall be divided equally between
them”
5. Contents of the Family Home and other Chattels (Clause 6.1 DSBA SA)
“The Husband acknowledges that the household chattels contained in and at present remaining in the
family home are and will remain the sole property of the Wife
The Wife acknowledges that the family car registered in the Husband’s name will remain the sole
property of the Husband” No specific information given as to how contents and car should be divided.
Worked off assumption that Wife receives the contents of the house in return for the Husband remaining
in possession of the car.
6. Succession Rights (Clause 10 of DSBA SA)
Spouses may choose to renounce their automatic succession rights under the Succession Act 1965 in
the Separation Agreement
o Note - A Deed of Waiver should also be obtained in relation to either party’s rights under the
Succession Act 1965.
“The Husband and the Wife hereby mutually surrender and renounce all rights either of them may have
under the Succession Act, 1965 to any share or legal right in the estate of the other on the other’s death
either testate or intestate and hereby renounce and waive their respective rights to the extraction of a
grant of Probate or administration in the estate of the other and undertake not to interfere in any way
with the extraction of a grant of Probate or administration to the estate of the other provided that none
of the foregoing shall impede either the Husband or the Wife from taking any legal action on behalf of
the children to protect or defend the children’s interests in the estate of either the Husband or the Wife
or from taking any action on behalf of the children under the provisions of the Succession Act, 1965.”
7. Full and Final Settlement (11.9 and 11.12 of DSBA)
“The parties agree that this Agreement has been reached on the basis of full disclosure by way of sworn
Affidavits of Means, of all their respective materials assets, income, liabilities, outgoings and pension
entitlements (if any).
It is hereby agreed between the parties that this Deed is in full and final settlement of all property and
financial issues between them and is intended by both of them to constitute proper provision in the
context of a future application for a Divorce and is concluded by both parties with the benefit of
independent legal advice.”
8. Other relevant clauses from the DSBA not specifically mentioned in the Problem Question
Responsibility for debts
Family Law – Tutorial 2
17
See DSBA Clause 8.
Pension Provisions (if any)
See DSBA Clause 9.
Note – While parties may agree a pension entitlement under a separation agreement. Any
such agreement by the beneficiaries of the pension trust is not legally binding on the trustees
of the pension trusts. Where a pension is involved, you should advise your client that a
separation agreement is not suitable.
Income Tax
See DSBA Clause 5.
Scenario 2 – The O’Sheas
Exercise 6
Discussion of preparatory work.
Exercise 7
Draft the affidavit of means and affidavit of welfare for your client from the information supplied. Make
a list of any information you would seek
Family Law – Tutorial 2
18
FORM 37A
AN CHÚIRT CHUARDA
THE CIRCUIT COURT
Record No:
KILFORD CIRCUIT
COUNTY OF KILFORD
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT,
1989 AND IN THE MATTER OF THE FAMILY LAW ACT, 1995
BETWEEN
Margaret O’Shea
Applicant
AND
Peter O’Shea
Respondent
AFFIDAVIT OF MEANS
I, Peter O’Shea, Marketing Manager at SAPI, of 19 Arundel Court, Ballynacompo, County
Kilford being aged 18 years and upwards MAKE OATH and say as follows:
1. I say that I am the Respondent in the above entitled proceedings and I make this
Affidavit from facts within my own knowledge save where otherwise appears and
where so appearing I believe the same to be true.
2. I say that I have set out in the First Schedule hereto all the assets to which I am legally
or beneficially entitled and the manner in which such property is held.
3. I say that I have set out in the Second Schedule hereto all income, which I receive, and
the sources of such income.
4. I say that I have set out in the Third Schedule hereto all my debts and liabilities and
the persons to whom such debts and liabilities are due.
5. I say that my weekly outgoings amount to the sum of ....... and I say that the details of
such outgoings have been set out in the Fourth Schedule hereto.
6. I say that to the best of my knowledge, information and belief, all pension information
known to me relevant to the within proceedings is set out in the Fifth Schedule
hereto.
FIRST SCHEDULE
Family Law – Tutorial 2
19
Where Margaret is your client include the following:
1. 34 Sea Gull Lane, held jointly as [tenants in common/joint tenants] with Peter, valued at
€440,00 and subject to a charge of €250,000 in favour of [BANK]
2. Property at Cahir Point, held jointly, valued at €250,000
3. Savings
4. Car
5. Share portfolio
6. PRSA policy
7. PIP policy
Where Peter is your client include the following:
1. 34 Sea Gull Lane, held jointly as [tenants in common/joint tenants] with Margaret, valued at
€440,00 and subject to a charge of €250,000 in favour of [BANK]
2. Property at Cahir Point, held jointly, valued at €250,000
3. €30,000 investment
4. Savings
5. Car
6. Share portfolio
7. PIP policy
SECOND SCHEDULE
Where Margaret is your client include the following:
Gross salary of €4,650 per month
Where Peter is your client include the following:
Gross salary of €6,575 per month
THIRD SCHEDULE
Mortgage of €250,000 in respect of 34 Sea Gull Lane, Ballynacompo, County Kilford with
[insert financial institution].
FOURTH SCHEDULE
Weekly Expenditure of €[ ]
FIFTH SCHEDULE
Where Margaret is your client include the following:
[Insert pension details]
Where Peter is your client include the following:
N/A
SWORN etc.
Family Law – Tutorial 2
20
FORM 37B
AN CHÚIRT CHUARDA
THE CIRCUIT COURT
Record No:
KILFORD CIRCUIT
COUNTY OF KILFORD
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM
ACT, 1989 AND IN THE MATTER OF THE FAMILY LAW ACT, 1995
BETWEEN
Margaret O’Shea
Applicant
AND
Peter O’Shea
Respondent
AFFIDAVIT OF WELFARE
I, Peter O’Shea, Marketing Manager at SAPI, of 19 Arundel Court Ballynacompo,
County Kilford being aged 18 years and upwards MAKE OATH and say as follows:
1. I say that I am the Respondent in the above entitled proceedings and I make this
Affidavit from facts within my own knowledge save where otherwise appears and
where so appearing I believe the same to be true.
2. I say and believe that the facts set out in the Schedule hereto are true.
SCHEDULE
Family Law – Tutorial 2
21
Part I -- Details of Children
1. Details of children born to the Applicant and the Respondent or
adopted by both the Applicant and the Respondent:
Eamonn O’Shea
11 January 1994
Fintan O’Shea
21 July 1996
Mary O’Shea
25 November 2001
Part II -- Arrangements for the children of the family
1. Home Details:
(a) The address or addresses at which the children now live: 34 Sea Gull Lane,
Ballynacompo, County Kilford
(b) [Details of number of living rooms, bedrooms etc. at the address]
(c) The house is owned by Peter and Margaret O’Shea
(d) The mortgage is being paid by Peter O’Shea
Part III -- Education and training details
(a) [Names of the school, college or place of training attended by each child]
(b) [Details of any special education needs of the children]
(c) [Details of education fees]
(d) [Will there be any change in these circumstances? If so, give details]
Part IV -- Childcare details
(a) Margaret O’Shea is responsible for caring for the children day to day.
(b) Peter is a marketing manager with SAPI. Margaret is a primary school teacher, teaching at
St. Mary’s Ballycompo.
(c) [Details of person who after the children when the parent is not there]
Family Law – Tutorial 2
22
(d) [Details of person who looks after the children during school holidays]
(e) [Will there be a change in these arrangements? If so, give details]
Part V -- Maintenance
(a) [Details of payments to upkeep of the children and sources]
(b) [Has the maintenance for the children been agreed? If so, give details]
(c) [Details of agreed maintenance]
(d) [Details of application for a maintenance order from the court]
Part VI -- Details of contact with children
(a) [Do the children see the Applicant/Respondent?]
(b) [Do the children stay overnight and/or have holiday visits with the Applicant/Respondent?]
(c) [Will there be any change to these arrangements?]
Part VII -- Details of Health
(a) [Details of health of the health of the children]
(b) [Details of any serious disability or chronic illness suffered by any of the children]
(c) [Details of any special health needs]
(d) [Details of health of Applicant and Respondent]
Part VIII -- Details of care and other Court Proceedings
N/A
SWORN etc..
Exercise 8
Draft the Civil Bill for your client. [Do not deal with ancillary reliefs]
Family Law – Tutorial 2
23
FORM 2N
AN CHÚIRT CHUARDA
THE CIRCUIT COURT
Record No:
KILFORD CIRCUITCOUNTY OF KILFORD
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT,
1989 AND IN THE MATTER OF THE FAMILY LAW ACT, 1995
BETWEEN
Margaret O’Shea
Applicant
AND
Peter O’Shea
Respondent
YOU ARE HEREBY REQUIRED within ten days after the service of this Civil Bill upon you
to enter or cause to be entered with the County Registrar, at his Office at County Kilford, an
Appearance to answer the claim of Margaret O’Shea of 34 Sea Gull Lane, Ballynacompo,
County Kilford, the Applicant herein.
AND TAKE NOTICE THAT unless you do enter an Appearance, you will be held to have
admitted the said claim, and the Applicant may proceed therein and judgment may be given
against you in your absence without further notice.
AND FURTHER TAKE NOTICE THAT, if you intend to defend the proceeding on any
grounds, you must not only enter an Appearance, but also, within ten days after Appearance,
deliver a statement in writing showing the nature and grounds of your Defence.
The Appearance may be entered by posting same to the said Office and by giving copies thereof
to the Applicant or his Solicitor by post and the Defence may be delivered by posting same to
the Applicant or his Solicitor.
Dated thisday of
Signed ........................…………………...............
Applicant /Solicitors for the Applicant
To: .............................……………..……..........
The Respondent /Solicitor for the Respondent
INDORSEMENT OF CLAIM
Family Law – Tutorial 2
A Decree of Judicial Separation is sought pursuant to the JUDICIAL SEPARATION AND
FAMILY LAW REFORM ACT, 1989 on the following grounds:
1. The Respondent has committed adultery under Section 1(1)(a); and
2. The marriage is broken down to the extent that a normal marital relationship has not
existed between the spouses for a period of at least one year immediately preceding the
date of the Application, as per Section 2(1)(f).
THE APPLICANTS CLAIMS:
[In relation to the family home at 34 Sea Gull Lane, Ballynacompo, County Kilford:
1. Sole residency of the property;
2. Full ownership of the property;
3. The Respondents to be solely responsible for mortgage repayments; and
4. Full ownership of all furniture and effects.
In relation to the children:
1. Maintenance of the children;
2. Sole guardianship and custody; and
3. All education costs
Additional reliefs:
1. Spousal maintenance;
2. All legal costs;
3. A portion of the Respondent’s pension.]
.....................................………………………...
Applicant/Solicitors for the Applicant
Exercise 9
Group discussion of drafting exercises.
24