Family Law: Divorce Proceedings

If your marriage is beyond saving, you may apply to court for a decree of divorce. In order to meet the requirements, you must:

  • Be living separately from your spouse for two of the previous three years (this was reduced from four out of the previous five years following a 2019 referendum)
  • Have exhausted any reasonable possibility of reconciling with your spouse
  • Have made adequate arrangements for the care of your spouse and any dependent family members, especially the children of either party

Things to Consider When Applying for a Divorce Decree:

  • The court may review previous arrangements, including separation agreements, when deciding on your divorce application. In fact divorce after legal separation should be relatively straightforward because issues relating to children, property, and maintenance will have been addressed previously. 
  • A decree of divorce is irreversible. You may apply to the court to review maintenance, access, and other issues after the divorce has been granted, however.
  • Irish residents may apply for divorce in Ireland, even if they were married in a different country.

HOMS Assist have extensive experience in the area of divorce and your rights and entitlements in this difficult process. We are skilled negotiators and will only seek recourse through the courts if we believe it is the best route to optimise the outcome for you.

Recognition of Foreign Divorces in Ireland

Concerned that your foreign divorce may not be recognised in Ireland? Divorces granted after 1986 are governed by two key pieces of legislation (Divorces granted before 1986 are governed by common law rules):

  1. The Domicile and Recognition of Foreign Divorces Act (1986). This act specifies that if either spouse was domiciled in the jurisdiction granting the divorce at the date divorce proceedings began, the divorce will be recognised in Ireland. (To be domiciled means to be living in a place with the intention of living there permanently).
  2. The Brussels II regulation of 2001, later amended by Brussels II bis. Brussels II regulation states that foreign divorces in Brussels II countries should be recognised automatically in Ireland.

Note: If you cannot prove that one of the parties was domiciled in the jurisdiction granting the foreign divorce, section 29 of the Family Law Act 1995 may help. This allows you to apply to the Circuit Court or High Court for a declaration that your foreign divorce should be recognised in Ireland. Even if the divorce is recognised in another jurisdiction if the divorce is not recognised in Ireland, this can have serious implications for tax or inheritance perspective.

Handling Business Assets on Divorce

It is important to review your family’s overall financial and personal circumstances when determining how best to provide for both parties to a divorce. This involves examining how the assets were acquired, which assets each party brought to the marriage, the parties’ ages, and the future financial responsibilities of each party.

Here are some questions we need to answer:

  1. When was the family business set up?
  2. What is each party’s role in the business?
  3. Is the fact that it is a family business an intrinsic part of the business’s value?
  4. Does the family derive most of its income from the business?
  5. Is the family home the business premises?

A basic tenet of company law is that a company is a separate legal entity from its members, but the separate legaI entity concept is disregarded by the courts in certain situations. During divorce proceedings, the courts may order:

  • corporate information be provided to facilitate a proper valuation of the shareholding
  • shares be transferred from one party to the other as part of such settlements

If the main asset is the family’s company, it is vital to:

  • extract enough value from the company to enable adequate provision for the spouse who may not be the key driver of the business
  • ensure that the value extracted from the business to make that provision does not threaten the company’s long-term ability to continue as a going concern

The court could, in principle, order the winding up of a company and the division of its assets, but this would be rare and not undertaken lightly. 

Inheritance & Divorce

Assets inherited by one spouse are generally not considered assets of the marriage—even if they have been transferred subsequently into both parties’ names. If, however, the inherited asset becomes the family home, it will be treated as an asset of the marriage and divided accordingly.   

Note: Although inherited assets may not be considered assets of the marriage, they are considered when determining each party’s overall wealth and requirements.

Considering a divorce? Contact us to pursue the best possible outcome in your unique situation.