Family Law



The breakdown of any family relationship causes great stress and emotional upheaval for all involved.
At Felton McKnight Solicitors, we believe that family law issues must therefore be dealt with in a confidential, sensitive and sympathetic manner.

Our family law solicitors offer specialist advice regarding the serious legal and financial implications of a family relationship breakdown in a manner which is always cognisant of the difficult situation facing the client. W
e can advise you about how to separate or how to divorce and our solicitors can guide you through the process from start to finish.

The possibility of a negotiated settlement of a family law dispute is always explored in the first instance. We can also offer clients the option of separating or divorcing using the Collaborative Family Law model. In Collaboratice Family Law, negotiations take place in a series of four way meetings with both the husband and wife and their respective solicitors working together to effect a resolution of all family law issues. This model differs from court based family law litigation in that the husband and wife make the decisions on the final result. The Collaborative Family Law model focuses on the parties' interests, allows everyone to maintain their dignity, lessens hostility, and reduces negative impact on children. Paul McKnight is a trained collaborative solicitor and can assist clients with this process

However, if the dispute cannot be resolved in this way, our soliciotrs are very experienced in representing our clients’ interests in the family law Courts.


How To Separate/ How To Divorce:


if you are wondering how to separate or how to divorce you may be interested to know the following:

In the case of both separation and divorce, the law allows for spouses to agree all aspects of a marriage breakdown. These may include such matters as custody of and access to children, financial issues, including maintenance and issues relating to pensions as well as the family home.


The fundamental difference between separation and divorce is that separated couples are still legally married and can not remarry until a divorce is obtained.


A divorce allows either party to remarry. In order to get a divorce in Ireland, the spouses must be (a) living separate and apart for at least four of the previous five years, (b) there must be no prospect of reconciliation and (c) there must be arrangements in place for the maintenance and welfare of the two spouses and any dependent children

 

How To Separate by Deed of Separation:

 

If a couple can agree on the terms on which they will separate it is possible to deal with the breakdown of their relationship by means of a document known as a deed of separation/separation agreement. The content of a deed of separation is usually negotiated and drafted by the couple's solicitors in accordance with their respective client's instructions. Alternatively, the terms of the separation agreement can also be agreed either through a mediation process or through a collaborative family law process.The deed of separation is then signed by the husband and wife. Once the separation agreement is signed, it becomes a legally binding contract setting out each party's rights and obligations to each other.

In general terms the main issues dealt with in a separation agreement are as follows:

 

  • Maintenance to be paid by one spouse to a dependent spouse.
  • The agreement facilitates the implementation of whatever terms the parties agree in relation to Property matters, such as  the sale of the family home and the distribution of the sale proceeds.
  • Both parties usually renounce/give up their Inheritance/Succession rights, under the Succession Act 1965, to a share in the estate of the other. 
  • While it is possible to agree that you are entitled to a share of  your spouses Pension fund in a separation agreement., the trustees of a pension will only implement that agreement after a court order known as a Pension Adjustment Order has been obtained.
  • Access, Guardianship and Custody of Children of children under eighteen years of age. 
  • There is usually a clause inserted in the separation agreement that has the effect of indemnifying both spouses from all future debts which are incurred by either of them.


How To Separate by Judicial Separation:

If it is not possible for the parties to agree the terms of their separation it is often necessary to make an application to the courts for a Decree of Judicial Separation. This application can be made by either party. This is a time consuming process and it could take two years before your case is ready for a full hearing. There may be many interim applications that have to be made along the way and there will be a need to exchange full financial documentation so that both sides know exactly what the other persons financial affairs are like. Ultimately if the case goes as far as a full hearing the Judge will decide the terms on which the parties will separate and the Judge will make relevant orders on matters such as property, custody, access and maintenance and pensions.

The court must also be be satisfied that:

  • The parties have met the appropriate statutory criteria to be entitled to bring the application.
  • The parties have had an opportunity to be legally advised and that they have been advised of the possibility of resolving their differences through either counseling or mediation.
  • Appropriate provision has been made for all parties including any dependant children of the couple.
  • Once all of these matters are decided, the court will grant a Decree of Judicial Separation. The granting of the Decree of Judicial Separation formalises the fact that the couple is no longer obliged to live together as a married couple.

The application for a Judicial Separation is usually made in the Circuit Court, and may be made either in the Circuit Court area where either of the parties lives or carries on a business. An application can sometimes be made in the High Court. As in all family law matters, cases are heard in private and the public is not admitted to the courtroom.

A Judicial Separation application is usually based on one of the following: 

  • The court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of the application for the decree.
  • Either of the parties has committed an act of adultery
  • Either party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with him/her
  • Either party has deserted the other for at least one year at the time of the application


Ancillary Orders:


The court has the authority to make orders for ancillary reliefs in respect of the various issues that are being contested. These are usually some or all of the following; maintenance, pensions, property, financial compensation orders or succession rights, custody and access. The court must take into account a number of factors when it is considering making any such ancillary orders. These include considering :

  • The actual and potential financial resources i.e. the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future.
  • The financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of remarriage or otherwise)
  • The standard of living enjoyed by the family before the proceedings were commenced or before the spouses separated.
  • Each party's age and the length of time the spouses have lived together.
  • Any physical or mental disability of either of the spouses.
  • The contributions which each of the spouses has made or is likely to make in the foreseeable future to the welfare of the family.
  • Any income or benefits to which each of the spouses is entitled under statute.
  • The conduct of each of the spouses.
  • The accommodation needs of either spouse.


How To Divorce:

If you want to make an application for a Divorce from your spouse you have to satisfy the following criteria before you can do so. You must have
lived separate and apart from your spouse for four of the five years prior to you commencing the divorce proceedings.

If you meet that specific criteria you can then commence the process of having divorce proceedings issued. In order to do this a number of documents will have to be completed and lodged with the Circuit Court office in the area you live in or are bringing the proceedings in. Those documents include:

  • An application form (known as a Family Law Civil Bill). This document describes the spouses, their occupations and where they live. It also sets out when they were married, for how long they had been living apart and the names and birth dates of their children. It also sets out a clear statement of what it is that the person who is bringing the case, called the applicant, says was the cause of the breakdown and sets out in detail the claim that they propose to make against their spouse and what relief or orders they are asking the court to make. it is necessary to attach a copy of your state marriage certificate.
  • An Affidavit of means.  This is a statement setting out your assets and liabilities and your income and expenditure.
  • An Affidavit of Welfare. This is another statement which relates to the welfare of the children. This document sets out the details of the children of the marriage, gives general details about where and with whom they live as well as also describing other important issues such as their education and training, their health and childcare, maintenance and access arrangements.


When all of the necessary documents have been lodged in court, the applicant applies to court for a date for the court hearing. This may take some time to come around and there may be a number of procedural applications that need to be dealt with as the case progresses. There will also be the need for a number of case management hearings where procedural issues such as the disclosure / discovery of financial documentation will be dealt with. When the County Registrar  is satisfied that the case is ready for hearing a court hearing date will be allocated. Once the hearing date is set, both parties and their representatives, including barristers, will attend at the Court. There is never any certainty that the case will actually be dealt with on the hearing date as there may be many cases listed for the same day. It is often the case that the matter will get adjourned on a few occasions before it actually gets heard.  The hearing will eventually be held in private. The applicant will need to show the court that they meet the requirements of the Family Law (Divorce) Act 1996, referred to above such as there is no reasonable prospect of a reconciliation between the parties .
The Court also has to be satisfied that  such provision as the court considers proper having regard to the circumstances that exist or will be made for the spouses and any dependent members of the family.



Children and Children's Rights


We are very experienced in the area of Children's Rights and have advised clients in relation to such issues for many years. We are familiar with the Child Care Act and the actions that can be taken in relation to children by the HSE or Gardai if they believe there is a risk to a child. We have advised parents on what to do in the event that there is an application made to take a child into care and we have represented parents in court in relation to such issues. We have liaised with the HSE and their solicitors and have also frequently engaged with Guardians ad Litem in relation to Child Care matters. We are very conscious of the rights of the child and have also acted on behalf of parents seeking to enforce their childrens' rights against the state and other parties. In particular the Right to Education is an issue we have advised clients on a number of occasions.We have also advised parents on the issues arising in respect of Adoption applications and what the parents' rights are in those circumstances and what the Child's rights are in those situations.

 Our Services
  • Separation

  • Divorce

  • Nullity

  • Issues relating to children, Guardianship, Custody, Access and maintenance

  • Domestic violence, protection, safety and barring orders

  • Prenuptial and co-habitation agreements

  • Co-habitation and non-marital relationships

Collaborative Law

In Collaborative Family Law, negotiations take place in a series of four way meetings with both the husband and wife and their respective solicitors working together to effect a resolution of all family law issues. This particular model of how to separate or how to divorce differs from court based family law litigation in that the husband and wife make the decisions on the final result. The Collaborative Family Law model focuses on the parties' interests, allows everyone to maintain their dignity, lessens hostility, and reduces negative impact on children. Paul McKnight is a trained collaborative family law  solicitor and can advise and assist clients with this relatively new process of how to separate or how to divorce.

 

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OUR EXPERIENCE


At all times, our commitment is to provide our clients with practical advice and assistance which will allow them to resolve disputes, settle contentious issues and overcome legal problems.


Our Experience