Recent Changes to Law on Divorce In Ireland

1.  Difference between Legal Separation & Divorce :   The Main change is that after a legal separation the couple are still married, they are only relieved of the obligation to live together.  After Divorce they are no longer husband and wife.  This is important for pension purposes as well as inheritance rights.  A separated couple can also agree to remain jointly assessed for income tax purposes.  

2.  New reduced waiting for Divorce – reduced from 4 Years to 2 Years living separate and apart.  

3.  New definition of living apart in new Divorce Law. 

Current Law :  

  • Subject to the provisions of this Act, Where, on application to it in that behalf by either of the spouses concerned, the court is satisfied that : 
  • At the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years. 
  • Proposed New Law :
    • Section 5 Family Law (Divorce) Act 1996 (as amended in new law, not introduced) 
    • (1A) For the avoidance of doubt, for the purposes of subsection (1) a court may be satisfied that the spouses have lived apart not withstanding that they have occupied the same dwelling, if the court is satisfied that the spouses have not lived together as a couple in an intimate and committed relationship. 
  • Those Who Live together but are not married may have rights : 
    • To seek maintenance 
    • In relation to property 
    • In relation to the other person’s pension 
    • To claim the estate of the other person 

    Key Questions : 
    • Married Couples – do you have a Will? and what property is jointly held? What is held in Sole Names? Are you actually legally separated or just living separately? (some pension schemes may have a clause that spouses must be living together in order to claim benefit as a widowed spouse -check the policy)
    • Unmarried People/Couples – are you living with someone, how long have you been living with them?  do you have children?  Do you have a Cohabitants Agreement? 
  • No Will – You Die In Testate

    Shares on Intestacy 
    • Spouse and Children – 2/3 Spouse, 1/3 Children 
    • Spouse and No Children – 100% Spouse 
    • Children and No Spouse – Equally divided between Children 
    • Father, Mother, Brother & Sisters – 100% to parents, 50% to each parent (or if only one parent 100% to the surviving parent) 
    • Brothers & Sisters – all take equally
    • Nephews & Nieces and Grandparent – Nephew and Nieces take equally 
  • Should you have a Will but do not provide enough for your spouse – your spouse has a legal right share which they can apply to court for 1/2 the estate if no children or 1/3 of the estate if there are children.  

    Unmarried Couple  : 
    A surviving cohabitant can claim within 6 months of the grant of representation being taken out, for the provision from the estate of the estate of the deceased cohabitant.

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