27th Mar 2021
The end of a relationship is both an emotionally and practically complex moment. We spoke to an experienced family lawyer about the pragmatic next steps once you’ve made the decision.
Divorce is one of the most difficult things a person can go through. Not only is the process financially and emotionally draining, but it’s also painfully tedious. But no matter how hard it may be, for some, it’s the right decision to make. Over 3,000 Irish couples file for divorce every year.
We consulted Ann O’Neill, one of the most experienced and well-respected family lawyers in Ireland, about what you need to do if you’ve found yourself in a loveless relationship and have decided to call it quits.
Based in Blackrock, Dublin, she’s been helping couples reach fair and amicable agreements for 33 years. “Divorce is not a decision that should be taken lightly,” she tells us. “It’s fundamentally costly and the court system is very slow at the moment. It’s dreadful – people’s lives are put on hold and often there are children involved.”
Find a lawyer specializing in family law
“The first thing you should do is see a family lawyer; someone who specialises in the area. If you just go to your local solicitor who did the conveyance of your house, they probably don’t know anything about it. They’ll try to be helpful, and they’ll try to give you advice, but it mightn’t be the right advice.”
“It has to be a deal which allows both people to move forward and co-parent…”
Ann says the best deal a solicitor can do for their client is one that’s fair to all parties; as it has the best chance for success in the long-term. “It has to be a deal which allows both people to move forward and co-parent, for example. Children can get caught in the crossfire, and there is nothing worse.
“At the end of the day, children are our most important assets.”
“Often a woman will say, ‘he’s never seeing my children again!’ But they’re not ‘my’ children; they’re ‘our’ children, and they need to see their father. It’s important to avoid using children as weapons,” Ann says, “because the children are the ones who’ll suffer; and at the end of the day, they’re our most important assets.”
Once you find the right type of solicitor, they’re obliged to tell you all about the mediation services available to you. Mediation is when you and your other half sit down with a third party person – or mediator – to try and resolve any disputes. Using specialised communication and negotiation techniques, they’ll attempt to resolve any conflict between you both.
“Go to the solicitor with as much financial information as you have…”
“After mediation, you still have to go back to the lawyer to turn it into a separation or divorce,” Ann says. This first meeting kicks off the separation process.
Ann advises you gather as much relevant information as you can ahead of your solicitor’s meeting. After all, the process is long enough without it being dragged out unnecessarily.
“When you go to the solicitor, go with as much financial information as you have (such as bank statements, investment portfolios, loan agreements, etc.). At this point, the solicitor can give you what I always describe as the ‘road map’.”
This takes you through what is likely to be the final outcome. “These issues include the custody of children, or access to children. If a partner doesn’t work, there’ll be the issue of spousal maintenance; if there are children, there’s the issue of child maintenance. The biggest issue is usually the family home, and then there are pensions and succession rights,” Ann explains, “So there are lots of things that have to be decided.”
“You first have to be living apart for 2 out of the previous 3 years…”
Divorce is a long and wearisome procedure, one that can’t happen on a whim or without serious thought and planning. You can’t just wake up one morning and decide to end your marriage. “Under the current legislation, you first have to be living separate and apart for least 2 out of the previous 3 years,” Ann explains.
“So if you’ve just become unhappy relatively recently, all you can do is proceed towards separation. There are time restrictions in that too – if everyone behaves themselves and nobody’s done anything naughty (no affairs, etc.) then you have to wait a year before you can issue judicial separation proceedings.”
“Two lovely young people just married each other incorrectly, nobody did anything wrong…”
The only exception to this one-year wait is when someone has had behavioural issues. “Say, for example, you woke up this morning and you thought you were in a fabulously happy marriage, but you learn at lunch-time that your husband has been having an affair for five years. That behaviour would be sufficient to allow you to issue judicial separation proceedings tomorrow.”
In every other instance, there must be no normal marital relations between the couple for an entire year before separation proceedings begin.
One of the key things people need to consider when filing for separation or divorce is the amount of cost involved. “When people separate, everyone’s lifestyle takes a turn for the worse – unless they’re inordinately wealthy.”
Not only are there legal fees to think about, but also many after-costs. If a couple is separating and one person has to move out of the family home, suddenly there is rent that needs to be paid every month. “House prices are increasing again and rents are gone completely crazy,” Ann says. Similarly, if the couple shares a car, one of them will need to purchase a second car. In many cases, the family home will be sold and the couple with split the proceeds.
“It’s a tax levied on people who are going through a process nobody planned for and nobody wanted…”
In terms of legal fees, these can be extremely high, depending on the amount of work and time spent on the case by the solicitor. Not only that, the government takes 23% of all solicitors’ fees in tax. Ann finds this frightfully unfair, saying there should be tax relief for people going through this ordeal.
“It’s totally unfair – there should be a reduced rate of VAT in family law cases, but there’s not.”
“The reality is it’s a tax on misery. It’s a tax levied on people who are going through a process nobody planned for and nobody wanted.
“In commercial cases, people can claim back the VAT. But not in private cases. It’s totally unfair – there should be a reduced rate of VAT in family law cases, but there’s not.
“The only financial relief the government gives on these proceedings is that there’s no stamp duty on hearings.”
Given the stress involved in divorce proceedings, Ann says she has some excellent counsellors on her speed dial that she recommends to clients.
“We deal with people’s lives. I’m quite a maternal person and I tend to mind my clients and emotionally support them as much as I can. But I’m not a trained counsellor, so sometimes if people are in a really bad way they should go to counselling. It’s probably the most stressful thing anyone will go through.”
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