What to expect when I issue proceedings for Separation or Divorce?

Taking the step to issue proceedings for Separation or Divorce is a difficult one.  We at Maurice Leahy Wade & Co encourage clients firstly to try to mediate the terms of their Separation and if this can be done we can then either put these terms in to a Separation Agreement or else, if applicable, rule these terms as a Divorce or Separation. 

If matters can not be done on consent, then the parties may have no choice but to issue Separation of Divorce Proceedings.  This means that your case starts out in court and will be ruled by a Judge.   This however does not necessarily mean your case will be heard in full by a Judge.  MOST cases settle prior to going into court and it is the term of settlement that is heard before the Judge and ruled before the Judge.  (Subject of course to the Judge being satisfied that proper provision has been made for all parties).


A Judge is concerned about the following:

1. That the relationship has broken down and there is no prospect of reconciliation.

2. That the parties are living apart for the requisite time (for Separation it is 1 year and for Divorce it is 2 years).

3. That proper provisions have been made for all parties.  *This mainly concerns the financial arrangements that have been made.  The court will be concerned where everybody lives and the access to the children etc. 

4. Once the Judge is satisfied that all of these matters have been taken into consideration the Judge will then rule the terms if they have been agreed or will decide on matters that have not been agreed. 


 

The following is a guide to the legal process leading up to a Ruling by the Judge:

 

Step 1.

The Applicant (person who starts the case by applying for Separation or Divorce) issues the proceedings called the Family Law Civil Bill. This will be drafted by the Barrister and reviewed and agreed by you the client.  This is lodged by your Solicitor in the Circuit Family Court along with the Applicant’s Affidavit of Means (which is a sworn statement of assets and liabilities and income and expenditure) This will have to be vouched (i.e. proven – to include bank statements, p60s etc.)  An Affidavit of Welfare will also have to be lodged if there are children that are dependent (under the age of 18 or if in full time education under the age of 23). 

The Family Law Civil Bill is the starting out document and it is the Applicant’s side of the story detailing when and where the marriage took place, what the parties work at, where they live, details of the children of the marriage and the reasons for the breakdown of the marriage if necessary.  This Family Law Civil Bill can say as much or as little about the breakdown of the marriage.  In my experience, the less inflammatory the better.  However, there may be circumstances e.g. where there is violence or addictions or infidelities where it may be necessary to give the court an accurate picture of the reasons for the breakdown of the marriage or the Respondent’s behaviour in the marriage.    Applicant’s should be aware that the more inflammatory this document is, the more likely the Respondent will want to robustly defend the allegations set out in the Family Law Civil Bill.  I always advise caution here. 

Step 2.

The Family Law Civil Bill together with the Affidavit of Means and Affidavit of Welfare is then served on the Respondent or preferably the Respondent’s Solicitor. The Respondent will then put in an Appearance. The Appearance is a document which states that they intend to answer the claim. The Appearance must be lodged in the Family Law Circuit Court within ten days of the Family Law Civil Bill being served.  However, in practice this is rarely done and the Applicants must send a warning letter that if the Appearance is not lodged within 14 days then the Applicant will issue a Motion (an application to the court to compel the Respondent to respond to the proceedings).  The Applicant can issue this Motion to compel the Entry of Appearance.  However, it may take a number of months to get a date for this Motion. 

Step 3.

After the Respondent, *The Respondent is the person who is responding to the proceedings* files an Appearance, they must then file their Defence (this is the response to the Family Law Civil Bill) and counterclaim to the Applicant’s claim.  This must be lodged within ten days of lodging the Appearance, but again in practice it does take much longer, and the default mechanisms are the same as that of the Appearance, referred to at Step 2 above.  The Respondent must also lodge their Affidavit of Means and Welfare (if children are dependent).

In practice, it is not possible to settle the case until Step 3 has been complied with or at least until Affidavit of Means have been exchanged and fully vouched.

Step 4.

Once vouching has been exchanged, it is then up to either party to request that the matter goes to Case Progression (Case Progression is where the Parties Solicitors meet with the County Registrar to advise her of the progress of the case and if anything further is required to progress the case prior to the case going to Hearing) or if both parties are in agreement you can bypass Case Progression and seek a Hearing date.  Other applications depending on the circumstances of each case may be necessary for example – applications regarding financial Discovery may have to be made where one parties financial story is not clear.  All of these applications add to the expense and to the length of time a case will take to progress.

A Hearing date will be facilitated in accordance with the court’s availability. Once you have a Hearing date it is advisable to arrive at the court early in order to get a consultation room.  However, in Covid-19 times this practice may be changed. 

Settlement

At any time after the exchange of vouched Affidavit of Means a settlement meeting can be set up in order to reach an amicable agreement.  A settlement has the advantage of not only being more cost effective but also a process which you have control over.  We cannot meet for settlement discussions until after Affidavits of Means have been exchanged and fully vouched. 

Hearing

When your case has been listed for hearing we will write to you and let you know.  We always encourage clients to get to the court early (8am Pre Covid-19) and get one of the eight coveted consultation rooms so you can consult with your solicitor and barrister in private.(these are not operating since Covid-19)  Otherwise we will meet you in the foyer of Phoenix House Family Law Courthouse.  You should either get there by public transport (right across from the Smithfield Luas stop) or park your car in a multi-story carpark – this is not the day to be worrying about feeding a meter.  The day starts with a call over of all the cases the judge has to deal with that day.  His/her list will have a mix of applications concerning access/maintenance/pensions etc and then there will be two or three matters listed for hearing.  Your case will take priority depending on where it is listed, however if this is the first time for hearing then it is unlikely to be first on the list.  In any event and no matter where your case is on the list, we as your legal team together with your experienced barrister will try and resolve matters for you that day.  So we will meet with your spouse’s legal representative and see what matters can be resolved without going into court. You will not need to meet/see with your spouse unless and until your case goes into court.  If we can agree matters, the terms of the agreement will be reduced to writing and then signed by you both and we will ask the judge to rule the terms.  The person applying for the separation/divorce will have to give evidence under oath (either swear on the bible or affirm) the following:

  • Confirm the date of marriage
  • Confirm the marriage certificate (which will be lodged in court in advance)
  • Confirm date of separation
  • Confirm that you are happy with the terms (which will be outlined by your barrister)
  • Confirm that there is no prospect of reconciliation

The judge always has the discretion to adjust the terms in some way but this rarely happens in practice.

If of course matters cannot be resolved then we will go into court where brief details are outlined to the Judge and we will take the judge through exactly what the issues are between the parties.  The judge will hear testimony from both parties under oath (either swear on the bible or affirm).  The judge will then issue their decision.

The only other people permitted in the courtroom are you and your spouse, your legal teams, the judge and the clerk.

You are not allowed bring other parties to court with you as it breaches the in camera rule (privacy). 

What to expect from Maurice Leahy Wade representing me

The breakdown of a relationship is a difficult one and we are only too aware can cause difficulties for everyone involved.  That is why at Maurice Leahy Wade & Co we do not seek to make this any worse than it already is.  It is not our job to judge or to become emotionally involved but to guide and hand hold our clients through the legal process as cost effectively as possible.  We are not interested in drawing this out to a lengthy process and we always encourage settlement where possible.  We always advise our clients to be careful where they get their information from as lots of people have a view of what is right and what other people got out of their settlement but in truth this is rarely the case as every case is different and everyone’s circumstances are different.  That is why we encourage our clients to seek help from professionals who are accountable for their advice while asking friends and family for emotional support only. 


If you wish to discuss things further please contact Hilary on hilary@leahywade.ie or call 01 840 6501/ 840 1156 to make an appointment

Video calls are also possible