By Aidan Duggan
To get a divorce in Ireland, you must meet certain conditions.
If you meet these conditions, you can apply to a court for a decree of divorce. This is a court order saying the marriage is dissolved (officially over) and means that you are free to remarry. A decree of divorce cannot be reversed, except in exceptional circumstances.
The court may also make orders (rulings) about:
- Custody of children and access to them
- Maintenance payments and lump sums to be paid
- The transfer of property
- Pension rights
- Other matters
Before a divorce
To regulate matters before getting a divorce, many couples either:
1. Enter into a separation agreement
This is a legally binding contract between you and your spouse. It sets out your rights and obligations to each other as you end your relationship. The terms of the agreement are usually reached through mediation or negotiation through solicitors.
2. Apply for a judicial separation
If a couple cannot agree on the terms for living separately, they can apply to the court for a decree of judicial separation. This is a legal document confirming that you and your spouse are no longer obliged to live together as a married couple. The court may also make orders in relation to other matters such as custody and access to children
However, it is not necessary to do either before applying for a divorce.
When you apply for a decree of divorce, the court can review your existing separation arrangements. This is review is important if your circumstances (or your spouse’s circumstances) have changed.
Rules for getting a divorce in Ireland
Before a court can grant a divorce, the following conditions must be met:
1. You must live apart
You and your spouse must live apart from one another for at least 2 out of the previous 3 years before you can apply for divorce. Before 1 December 2019, this was 4 out of the previous 5 years.
The Family Law Act 2019 (pdf) clarifies that ‘living apart’ includes couples who live in the same home as one another but are not living together as a couple in an intimate and committed relationship.
The Act also says that a relationship does not stop being intimate just because the relationship is no longer sexual in nature.
2. You must live in Ireland
Either you or your spouse must:
- Be domiciled (living permanently) in Ireland when the application is made, or
- Have lived in Ireland for at least the 1-year-period before the application is made
3. You accept that you will not be getting back together
There must be no reasonable prospect of reconciliation.
4. Arrangements must be made to look after your spouse, children and others
Proper arrangements must have been made, or will be made, for the spouse and any dependent members of the family such as children and other relatives.
Do I need a solicitor?
There may be complex issues that may make it very difficult to apply for a divorce without any professional help.
If you and your spouse disagree about any issue, you are strongly advised to see a family law solicitor. You and your spouse should not use the same solicitor.
Hiring a solicitor
If you choose to hire a private solicitor, be aware that there is no fixed rate of charges for legal fees.
Fees can vary quite dramatically, so it would be a good use of your time if you can get some quotes before deciding which solicitor to use.
If you decided to separate or divorce, mediation can help you to negotiate your own terms of agreement. Mediation is a service that allows a couple to make their own decisions, and it aims to ensure that everyone’s needs and interests are met.
Mediation is not marriage counselling or a legal advice service.
If you are represented by a solicitor, your solicitor must explain and discuss the option of mediation with you and provide a list of appropriate mediators.
If you choose to be represented by a solicitor, you must get a declaration from the solicitor that you have been told about mediation as an alternative to going to court. You must include this declaration with your court application.
The Mediators’ Institute of Ireland can provide a list of private accredited mediators.
How to apply for a divorce
If you meet the conditions for getting a divorce in Ireland, either you or your spouse can apply to the court for a decree of divorce. This is a document saying the marriage is dissolved (officially over) and means that you are free to remarry.
When making your application in your local Circuit Court office, you must submit 5 documents:
1. An application form (known as a Family Law Civil Bill)
This document describes both you and your spouse, your occupations and where you live. It also sets out when you married, how long you have been living apart for and the names and birth dates of your children.
If you were previously separated from your spouse, you may have a separation agreement. If there is such a document, you must include it with the Family Law Civil Bill.
2. A sworn Affidavit of Means (Form 37A)
This document is a statement that sets out your financial position, for example, your assets (things you own), your income, your debts and liabilities (money you owe) and your outgoings. This will have to be vouched unless its contents are accepted by your spouse. Vouched means you will have to prove that the information is true with documents such as bank statements, pay-slips and utility bills.
3. A sworn Affidavit of Welfare relating to the welfare of your children (Form 37B)
This document sets out the personal details of the children of the marriage. It describes where they live and with whom. It also describes their education and training, their health, any childcare arrangements and maintenance and access arrangements.
4. A document certifying that you have been advised about mediation (Form 37D)
This document is signed by a solicitor. If you are representing yourself, this form is not needed.
5. Your original State marriage certificate
You may need to provide an official translation if your marriage certificate is not in Irish or English.
If you and your spouse disagree about details of the divorce
If the divorce or any aspect of it is contested (you and your spouse do not agree on the details), the other person will need to submit forms too, including:
1. An Appearance
This indicates the other person’s intention to contest the divorce application (or any part of it).
2. A Defence (and Counterclaim, which has similar details to the Family Law Civil Bill)
This disputes any matters contained in the Family Law Civil Bill. It also sets out what your spouse claims to be entitled to.
3. An Affidavit of Means (Form 37A)
This has to be vouched unless its contents are accepted by the other side.
4. An Affidavit of Welfare (Form 37B)
If you wish, you can simply accept (by short affidavit) all the information contained in the first Affidavit of Welfare.
5. A document certifying that you have been advised about mediation (Form 37D)
If you choose to be represented by a solicitor, you will need a document to say you have been advised about mediation.
You may be required to file further documents before a hearing date will be given, such as an affidavit that proceedings have been served on any relevant pension trustees and notice to fix a date for trial.
After you file your documents
After you and your spouse have submitted all of the necessary documents, you will be given a date for a court hearing. This hearing will be held in private. You may be allowed by the court to have someone accompany you.
You can read more about the factors considered by a court in a divorce case.
If the court decides you have grounds for a divorce, it will grant a decree of divorce. This means the marriage is dissolved (officially ended) and you are free to remarry.
Bona fide (genuine) members of the press can sometimes be in attendance at court. They are not allowed to reveal personal details.
Most applications for divorce are made in the Circuit Court. However, it is also possible to apply for a decree of divorce in the High Court. Applications in the High Court are rare and limited to cases where there are very substantial assets and complex ownership issues. The forms used will be similar in content, but they may vary in name and number.
Divorce by consent
If you and your spouse fully agree on the terms of your divorce, the procedure for applying for the divorce is different.
One of you must still be the applicant and the other the respondent. You must still meet all the rules for getting a divorce in Ireland.
In general, the process is:
1. The applicant submits a Family Law Civil Bill
Either you or your spouse must be ‘the applicant’ and submit an application form (known as the Family Law Civil Bill) with the relevant Circuit Court. This form includes a list of any orders you have agreed to apply for, such as the family home, maintenance, custody, pension etc.
2. The respondent confirms the application form
Either you or your spouse (whomever did not submit the application form) must confirm to the court that you received a copy of the application. You must also consent to the application and, if relevant, any orders it contains. If you (the respondent) do not wish to attend the hearing, you must confirm this on affidavit.
3. Both you and your spouse provide an Affidavit of Means (Form 37A)
This form sets out each person’s financial position, including assets, income, debts and liabilities and outgoings.
4. Both you and your spouse provide an Affidavit of Welfare (Form 37B)
If you have dependent children, both you and your spouse need to provide an Affidavit of Welfare (Form 37B) about the care, health and education of the children. This form also describes:
- The children’s education and training
- The children’s health
- Childcare arrangements
- Maintenance and access arrangements
The respondent can simply file a short affidavit agreeing with the applicant’s statement.
5. Confirm that you have been advised about mediation (Form 37D)
If you both choose to be represented by solicitors, you and your spouse must provide a sworn statement that you have been advised about mediation. This document is signed by your solicitor.
6. Submit a Notice of Motion and Affidavit
If you and your spouse are in full agreement about the divorce, you must submit a Notice of Motion requesting that the court considers and rules on your application. You must include an affidavit confirming that you have followed the rules for getting divorced, as well as outlining the final agreed terms. Contact your local court office for advice on the appropriate forms to use.
7. Other documentation
Depending on your circumstances, other documentation may also be required, such as an affidavit that proceedings have been served on any relevant pension trustees.
Going to court
If you cannot agree on the terms of your divorce, the court will decide for you.
Going to court can be daunting. A solicitor who specialises in family law can help you by explaining the process and your options. Find contact information for solicitors throughout Ireland on the Law Society website.
- Find out about case progression (the management of your case before the actual hearing)
- Watch a video on how to prepare for your family law hearing, and
- Watch a video on what happens on the day you attend the family court
Family law proceedings can be sensitive, emotional and difficult. Tell court staff if you need alternative arrangements, particularly for leaving the courtroom or if you need any support after the hearing.
I got divorced in another country – is my divorce recognised in Ireland?
Divorces granted in most EU member states are generally automatically recognised here without the need for a court application. However, if there is a dispute, an application can be made to have the divorce recognised or not recognised here.
Foreign divorces (including those granted in non-EU member states) will be generally recognised in Ireland if either of the couple was living permanently in the state granting the divorce at the date when the divorce proceedings were issued. The foreign divorce will also be recognised in Ireland even if the parties were not living permanently in the state grating the divorce and are not living permanently in Ireland if the divorce is recognised in the state or state where they now live. You must also comply with the laws of the other country when obtaining your divorce.
If your divorce is not automatically recognised in Ireland, you can apply to an Irish court to have the terms of the divorce recognised here.
The court’s decision will depend on a number of factors:
- Where the divorce was granted
- When it was granted
- Whether either of the spouses lived in the jurisdiction granting the divorce, for how long, whether or not it was their normal residence, and whether they intended to stay there.
Brexit and UK divorces
On 31 January 2020 at 11pm the UK exited the EU. From that date the UK is no longer a member of the EU and is considered a third country. During the agreed transition period (until 31 December 2020), British citizens and their families had the same right to live, work, claim benefits, and access healthcare in the EU as they had before. This includes the recognition of British divorces in EU member states.
Since 11pm on 31 January 2020, the UK is no longer covered by EU laws relating to matrimonial matters. However, the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020 (pdf) provides for the continued recognition in Ireland of divorces, legal separations and marriage annulments granted in the UK.
The content on this blog is not intended to be a substitute for professional advice, and should not be relied upon as such.
I appreciate looking for the best Family Law solicitor in Dublin can be a difficult proposition, but if you need advice about getting a Divorce or any other legal matter, please contact me today on +35316625233 or email@example.com
Aidan Duggan (Solicitor)