Advice from experienced family law solicitor on practical side of working through Covid-19 crisis

Written by
Caroline Fitzgibbon on
21 April 2020

Living separate and apart

By its very nature, the breakdown of a relationship is distressing but particular regard and empathy must be had to those who are living "separate and apart" but under the same roof at a time when the world is struggling to deal with the fallout of Covid-19.

On 24th May 2019 the people of Ireland voted overwhelmingly to remove from Article 41.3.2 of the Constitution the minimum living apart period for spouses seeking a divorce.  Prior to then, a separated couple could not apply for a divorce until they had been living apart for four out of the previous five years which was far too long to wait when a marriage had irretrievably broken down.  With effect from 1st December 2019, an application can now be made for a divorce once the spouse or civil partner has been living apart for a period of four out of the previous five years.

The Family Law Act 2019 has clarified the phrase "living apart". Spouses/civil partners who still reside under the same roof will be considered as living apart from one another if the Court is satisfied, that while so living in the same dwelling, they do not live together as a couple in an intimate and committed relationship.  The Act further states that a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature.  People reside together but separate and apart for various reasons the clarification on “living apart” means that couples living together will find it easier to apply for divorce.

The reduction in living apart period means also that for people who have applied for judicial separation which have not been concluded, from 1st December 2019 they can convert those separation proceedings to divorce proceedings where the necessary two-year period has elapsed thereby reducing costs and stress. 

Many people will not wish to wait a period of two years to regularise matters and there are supports in place as an alternative such as counselling and/or mediation.  Where a relationship has irretrievably broken down, the process of formal separation can be commenced and progressed in dealing with all aspects of breakdown from financial to child welfare issues.  If during that time agreement is reached and the period of two years has elapsed, then divorce proceedings can be issued, and the terms of separation can be converted to agreed terms of a divorce.  Where matters are not agreed, divorce proceedings could also be issued, and the matter dealt with as divorce.  In cases where terms are agreed quickly following a separation, the matter can be formalised as a separation and once a period of two years has elapsed, an application can be made for divorce on consent.

Access to children

Not all estranged couples will live separately under the same roof and for many during this crisis, the difficulties of living apart will raise other issues.  Separated parents of children may share access to their children.  Many families will have financial worries and the stress of maintenance and how that is paid and supported is another cause for concern.

It is important that parents do their utmost to communicate with each other in a way that is positive.  Identify the issues that cause concern and try and work out a solution.  For example, how are you going to work, how is childcare managed during this time.  Are there elderly parents or grandparents living with the child/children and what is being done to protect the vulnerable?  It is vital that both parents keep each other updated as to the health and welfare of their child/children and indeed their own health.

Parents should both engage in social distancing and abide by the rules concerning non-interaction with third parties and be able to give assurances in that regard.  Where parents agree that access arrangements should be varied on a temporary basis, they are encouraged to make a note of the varied arrangement whether by way of email or text.  Where it is not possible for access to take place, it is important that regular and liberal access is facilitated in a way that is safe.  Alternative means might include FaceTime, WhatsApp, Zoom or Skype and where that is not possible, by phone. 

Maintenance

For some people, there may be a change in their financial circumstances and therefore they will have concerns regarding maintenance.  Again, both parties are encouraged to communicate with each other and try and work out a temporary arrangement.  Provision will have to be made and it is always best to make some payment.  Where there is a significant change in financial circumstances, a discussion should be had a soon as possible and preferably before the next date that payment is due.

The District Court will continue to hear urgent matters only in all District Courts throughout the country.  New applications for protection or interim barring orders can still be made.  Breach of access and/or maintenance are generally not considered to be urgent.  The President of the District Court has issued a practice direction which states that a case which does not come within the defined urgent category can be treated as urgent if a good case can be made.  A person is at liberty to contact Court Services and set out the reasons why the case should be considered urgent.

The fallout of Covid-19 has yet to be determined but will have an impact on us all worldwide.  It is important that people at least try and communicate with each other and see if solutions can be found during this very difficult time.  It is not always possible to achieve those solutions, but the HOMS Assist team will do their utmost to achieve a solution and to assist where intervention is needed.