JANUARY is often considered the biggest break-up month for couples. While the Citizens Information Service is not a legal service, it does provide basic advice and information on family law matters. The following are some common queries:
What are the legal options for separating couples?
In Ireland, you can legally end a marriage in three ways – a separation agreement, judicial separation and divorce. You can also legally end a civil partnership using a process called dissolution.
In order to be granted a judicial separation, divorce or dissolution, you must apply to the courts. The court will look at a range of factors when considering your application, such as your income and standard of living.
Depending on your situation, the court can make ancillary orders impacting different aspects of your life. For example, these can relate to the custody of your children and ownership of the family home.
Separation agreements are instead negotiated through your solicitor and your spouse’s solicitor, and do not need to go through the courts. If agreement can be reached reasonably quickly and a separation agreement drawn up, it is cheaper and less stressful than going to court. Many couples formalise their separation in this way.
Is it different if the couple were not married?
If you have been living with your partner and your relationship ends, you may be able to avail of the Redress scheme for cohabiting couples. The aim of the redress scheme is to protect a financially dependent member of the couple if the long-term cohabiting relationship ends (either through death or separation).
Under the redress scheme, cohabiting couples can get similar orders from the court as are available to married couples when they separate or divorce if the court is satisfied one of you was financially dependent on the other. The types of orders you may apply for under the redress scheme include property adjustment orders, maintenance orders, pension adjustment orders.
To apply for court orders under the redress scheme, you must be a qualified cohabitant. This means you must have been:
- Living together in an intimate and committed relationship for at least five years, or
- Living together in an intimate and committed relationship for two years if you have had a child with your partner
You must apply for these orders within two years of your relationship ending, unless there are exceptional circumstances.
When a relationship ends, couples may have questions about their property rights. This is a complex situation and the answers depend on a range of factors including whether or not the couple were married.
If the couple are married and the title deeds of the house are in both names, they are joint owners. This is also known as a joint tenancy. In this case, the couple can agree to sell the property and split the proceeds; or to buy out one partner’s share. If there is a mortgage on the home, you will have to get the agreement of the bank.
It is important to remember that if you took out a mortgage with your spouse or partner, you are jointly liable for the mortgage payments. Even if your spouse stops paying, you are still responsible for the whole amount.
You do not have to be a legal owner (have your name on the title deeds) of the family home to have a legal right to the property after marriage breakdown. It all depends on the surrounding facts. Matters such as each person’s contribution (financial and otherwise) to the home and the family will be very important.
One spouse cannot sell, mortgage, lease or transfer the family home without the consent (permission) of their spouse. These provisions do not apply to cohabiting couples. If you are cohabiting (living together but not married) and your relationship breaks down, the family home will belong to the person who holds the legal title to the home. This could be one of you, or both of you.
If you cannot come to an agreement, you can apply to the court to have the property sold and the proceeds divided, or it may be possible to seek an order breaking up the property.
If your name is not on the title deeds to the house, you may still be able to show that you have some ownership rights in relation to the house.
If you are married and applying for judicial separation or divorce, and you cannot agree on what happens to the house, the court will make a property adjustment order, where the court decides what happens to the property.
What happens to the children in a break-up?
If there are children involved, a relationship breakdown can be life-altering. It needs to be handled sensitively to ensure the children’s best interests are prioritised.
Often, if a married couple with children are separating, the person who looks after the children the majority of the time will get to stay in the family home until the youngest child reaches 18 years (or 23 if they are in full-time education).
Dependent children of civil partners are protected in a similar way under the Children and Family Relationships Act 2015.
If the parents cannot agree who the child will live with, the court can make orders in relation to custody and access.
A mother who is not married to the father of their child automatically has sole custody of the child. A mother is also an automatic guardian. Married spouses living together have joint custody and are joint guardians.
Where you and your ex-partner agree, it is possible to decide on custody arrangements for your child.
If you do not have automatic rights or cannot reach agreement, you can apply to the court for custody. The two main types of custody are sole custody where one parent or person is appointed by the court to be responsible for the child’s day-to-day care and joint custody where both parents or two people are appointed by the court to be responsible for the child’s day-to-day care
When the court is deciding on a custody order, the most important factor will be the welfare of the child.
As part of the decision-making process about custody and access, the judge may order that certain reports are done to find out the views of the child depending on the age and maturity of the child. The best interests of the child may not always be the same thing as what the child wants, but the child’s view will be heard.
For further information call a member of the local Citizens Information Service in West Cork on 0818 07 8390. They will be happy to assist you and if necessary arrange an appointment for you. The offices are staffed from 10am-5pm from Monday to Thursday and on Friday from 10am-4pm. Alternatively you can email [email protected] or log on to www.citizensinformation.ie.