Since divorce was enacted into law in Ireland in 1996, the Irish courts have granted over 100,000 divorces, writes Karen Walsh.
With the yearly figure just below the 3,000 mark in recent years, marital breakdown in Ireland is now a common reality.
While a divorce is often an extremely stressful process for all involved, there are ways of avoiding and limiting such stress, in addition to maintaining an amicable relationship with one’s former spouse.
Maintaining such a relationship can save huge amounts of time, money, and further upset, and is always better if there are children of the marriage.
One of the most important things to remember in a divorce, is that there is no element of ‘blame’ or ‘fault’ taken into account by the court.
In this way, there is no reason to attempt to point a finger at anyone or attempt to repudiate one’s liability from the marital breakdown.
It is hugely beneficial to keep the process as non-confrontational as possible, in particular where children are involved. Where children are involved, parents must be practical and recognise that they will more than likely remain in each other’s lives, moving forward, and therefore it is everyone’s interests to keep things as amicable as possible.
The role of the court is to divide assets in a way which provides financial support for spouses and children, and to reach agreements in relation to custody.
The court must ensure that proper provision is made for both parties, and it is important to remember a divorce does not automatically mean that one spouse is entitled to half of anything.
It is often a good idea for the two parties to attempt to reach an agreement themselves, and not leave it to be decided in a courtroom.
This can improve the time and cost efficiency of a divorce, in addition to improving the nature of the relationship after the process is complete.
It is important that both parties seek qualified legal advice in relation to this, and that solicitors are employed to limit any legal complications that may arise.
Families who feel they may not have the means to employ a family law solicitor may qualify for a reduction in legal fees through the Legal Aid Board, more details on this can be found on their website (www.legalaidboard.ie).
When attempting to divide assets, it is hugely beneficial to begin with compiling a list of all assets in both joint and single names.
One asset which frequently causes difficulty is the family farm, especially in cases where the family home is located on the farm, and where the farm is the primary or sole source of income.
As assets go, agricultural land is unique, in that it has huge capital value, but often only a limited earning capacity.
There is no divorce formula for what should happen to a farm. Dividing the farm is rarely an option, unless the holding is significant, and the smaller holding will rarely be viable to provide an income.
Having a former spouse living in the family home on the farm can lead to difficulty, resentment and frustration, especially if another partner moves in.
Where a spouse is departing the family home, because it is not reasonable or practical to remain, the court will usually award an amount to be given to provide alternative accommodation, provided that the remaining spouse has sufficient assets and income to provide this lump sum.
In practical terms, it is very important to be in a position to give the court options, or to perhaps have mutually agreed a solution. This means that preliminary work must be done by anyone wishing to hold on to a farm, or a large portion thereof.
It is worthwhile to investigate as to whether or not a mortgage can be raised to assist in this matter.
Alternatively, enquiries should be made as to whether a portion of the lands can be sold without affecting the operation of the farm to an excessive extent. Enquiries can also be made of the planning authorities to determine whether planning permission would be granted for sites.
The more work that is done by the parties in advance of the court hearing, the greater the number of options available to the court.
Parties should not arrive to court expecting the judge to solve their problems, and if no options are presented to the court, it is more likely that an order for part or all of the farm will be made.
When facing marital breakdown, there is no ‘one size fits all solution’ but a distressing time can be made less stressful, depending on whom you consult, and how you approach it.
Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.