It is a requirement under section 6 of the Family Law Divorce Act 1996, that the solicitor who represents the applicant in a divorce, must discuss with him/her the possibility of reconciliation with his/her spouse. The applicant's solicitor must also ensure that the applicant is aware of the alternatives to divorce.
Though the Family Law Divorce Act does not specifically mention lay litigants (those not represented by a solicitor) and a need for them to make themselves aware of the alternatives to divorce, many of Ireland's circuit courts do require the applicant to certify that they are aware of other possibilities, which are described below.
Mediation is a form of voluntary alternative dispute resolution. It is a way of resolving disputes between separated spouses, in which a neutral third party, the mediator, assists to negotiate a settlement or reach an agreement. The mediator facilitates the resolution, but does not direct it, allowing the spouses to come up with their own solution to their problems. Mediation should be the first option for disputing spouses to consider, as it is far better for them to solve their own problems with the assistance of a professional than to have decisions made for them by someone else.
In mediation, all disagreements can be negotiated. The more common subjects are the family home, finances and children. The mediator will help to clarify the matters at hand and explore the the options available. The spouses consider the options and decide upon a mutually acceptable solution that bests reflects a win-win situation. After a number of sessions, the mediator draws up a written agreement presenting the decisions and intentions of the spouses. The agreement is not legally binding, though it is usually the framework around which a Deed of Separation is built.
For more information on mediation and a list of offices you may wish to contact, visit the Legal Aid Board's Family Mediation Service website.
A Separation Agreement or Deed of Separation is a contract between spouses in which they agree the terms on which they will live separately. Both parties must consent to the terms of the agreement. It is a legally binding contract setting out each party's rights and obligations to the other and their children if any. The agreement does not require any input from the court system. The terms of the agreement are reached through mediation or negotiation through solicitors. One solicitor cannot represent both spouses, due to conflict of interests, and each spouse must obtain advice from their own solicitor. When applying for a judicial separation or a divorce, the content of the agreement can be made into a rule of the court.
A judicial separation is similar to a divorce, but it does not allow either spouse to re-marry. A judicial separation gives spouses the right to live apart. It usually includes orders in relation to children, maintenance, property, succession rights and finances. A decree of judicial separation will be based on one or more of the following grounds:
- one spouse's behavior is such that it would be unreasonable to expect the other spouse to continue to live with him/her
- desertion for a continuous period of one year or more at the time of the application
- separation for a continuous period of one year or more at the time of the application and both parties consent
- separation for a continuous period of three years or more at the time of the application, whether a party consents or not
- a normal marital relationship has not existed for one year or more at the time of the application