Marital breakdown is a complex matter which requires specialist legal advice to properly address its component parts. In both separation and divorce, many of the key issues to be resolved remain the same and include the division of assets, ownership of the family home, adjustment of pensions, future maintenance & support, custody & access rights for children and waiver of succession rights.

The key difference between separation and divorce is that a person cannot remarry following a separation. Also, the parties can agree a separation agreement without any living apart period (save for judicial separation, where just one year applies). After amendment of the Family Law (Divorce Act) 1996 (which reduced the living apart period for divorce to two out of three years), most cases of marital breakdown now commence by way of a divorce application.

In dealing with separation and divorce, proper division of assets is one of the main areas on which we focus. Assets such as the family home, farms, rented property, shares, insurance policies, pensions and investments must all be identified and correctly valued. We work closely with clients to track undeclared foreign assets and, where necessary can obtain court orders to prevent dissipation of those assets. Acting for landowners, we advise on the special rules protecting inherited land and how farms and other property can be ring fenced for the children of the marriage. Our solicitors will file all disclosures and draft the necessary Affidavits of Means to ensure that your Case Progression proceeds without delay.

In some family law cases, it is possible to achieve a consent divorce by way of a negotiated settlement where agreed terms are recorded in a comprehensive divorce settlement. These agreements are legally binding but must be formally approved by the Court. Unlike contested cases, consent divorce orders are less expensive, and avoid the stress and anxiety of court appearances.

When finalising divorce and separation cases, it is essential that pre-existing wills be revoked immediately and that new wills be put in place. Neither separation nor divorce revoke pre-existing wills which can create an anomalous situation where a divorced or separated spouse may inherit your estate.

These are agreements executed by parties in contemplation of marriage, directing how their assets should be divided in the event of a subsequent divorce or separation. Prenuptial Agreements must be in writing and include full disclosure of all assets. The parties are required to obtain independent legal advice and it is essential that the agreement is put in place, well in advance of the intended marriage. We find that such agreements are particularly relevant in second marriages where parents wish to secure the inheritance rights of children from a previous marriage or relationship. 

Whilst prenuptial agreements have not yet been legislated for in Ireland and are not strictly binding on Irish courts, judges will however take account of them in separation and divorce proceedings where proper provision for the parties has been made in the agreement.

Renunciation Agreements are agreements made by married couples after marriage, cancelling or renouncing their inheritance rights which they would otherwise be entitled to on the death of the other. These rights (referred to as the “Legal Right Share”) are enshrined in the Succession Act 1965 which provides that a surviving spouse is legally entitled to a specified share in the estate of their deceased spouse. 

The extent of this share varies depending on whether the deceased had children and whether he/she died with or without a will. For example, if a spouse dies with a will and leaving children, the legal right share is one third of your estate with the remaining two-thirds split equally between your children. Where there are no children, a surviving spouse’s legal right share is one half of your estate. 

In every case of separation and divorce, it is essential that the parties renounce their inheritance rights to ensure that a separated or divorced spouse does not have a claim against your estate. It is also important that pre-existing wills are revoked, and new wills put in place. In the event of a second marriage renunciation agreements are particularly relevant where parents want to ensure that their assets will go directly to their own children on death, without their second spouse having a legal claim on their estate.

Following the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (2010 Act), legal status is now conferred on a range of contemporary relationships, which previously were unrecognised under Irish law. The 2010 Act bestows the legal status of cohabitees on couples who have resided together for periods of two years (where there are dependent children) and five years (where there are no children of the relationship).

The 2010 Act also introduced a redress scheme for cohabitees which can have implications for unmarried couples in long term relationships by allowing a partner to make a claim on the estate of the other if the relationship breaks down, or on death. Such outcomes may not be known or intended but can frustrate wills and inheritance rights of adult children if not addressed in advance. However, if unmarried couples do wish to regulate and control their own affairs, this can be achieved by putting a Cohabitation Agreement in place which allows couples to opt out of the statutory Redress Scheme. Such agreements allow couples to regulate their financial affairs on their own terms and importantly avoid interference with wills and family succession.

Unmarried partners are at a distinct disadvantage when it comes to inheritance rights on death. Unlike married couples, cohabitants have no automatic right of inheritance on the death of their partner and a court order is required to establish such rights. This is also the case where a relationship breaks down during lifetime. It is important to note that cohabitants are regarded as strangers for the purpose of both inheritance and gift tax and do not benefit from the usual spousal exemption when transferring assets to one another. However, a general exemption from taxes can be obtained where assets are transferred on foot of a Court Order under the Redress Scheme. Anthony Carroll are experienced in this area and  can advise on cohabitation arrangements and the tax implications thereof.