When seeking advice on divorce or separation, clients often tell me that this is their first time going through the process and they need a lot of information. Despite this, everyone has gathered up some knowledge about separating and often it’s completely wrong.
The more common mistakes are set out here and discussed in some detail. They may be relevant to your own situation or that of someone you know. To be clear on any questions you have, please consult us before making any decisions or jumping to any conclusions.
- That the length of time you are married does not matter.
Actually, it does. It is a relevant factor to be taken in to account in awarding a lump sum or in considering contributions to the purchase of property.
- That you have to get divorced in the country where you got married.
Many people go off to a romantic location to get married. The relevant location for your divorce or separation is where you are domiciled (living in and intending to permanently reside in a particular country) and/ or resident. So you do not have to go back to Fiji to get your divorce, (unless you are lucky enough to be living there).
With the requirement of four years separation for divorce in Ireland, you probably would get it sooner in any other country so it is understandable when people try to establish links with other countries.
- Joint custody means equal time with each parent.
The concept of joint custody really relates to the legal right to be involved in major decisions affecting the childrens’ lives. The amount of access determines where the children spend their week. This is something best agreed by the parents rather than having a court decreeing who spends what time with their mother or father.
There is usually one parent nominated for the children to reside with.
- That a separation agreement does not count.
Some people think that if you do not get an order from the court, you are not really separated. This is very far from the truth. If you have a separation agreement, you cannot apply to the court for a Judicial Separation. An agreement is fully binding. What it cannot do is make Pension Adjustment Orders. In certain circumstances, an application to court is made purely for the purposes of Pension Adjustment Orders.
- That the date of separation runs from the date of the Court Order or separation agreement.
For the purpose of calculating four years to file for divorce, the actual date of separation i.e. when one person moved out is the relevant date. There is also the possibility that you have been living “separate and apart but under the same roof”. This means you are living completely separate lives and that it cannot in any sense be said that you are living as a family.
- That if your name is not on the birth certificate you cannot be made a guardian.
Fathers often think that because they are not on the birth certificate they cannot become a guardian of their child. This was never the case. Even before the Children and Family Relationship Act was passed in 2015, it was possible to become a guardian without being on the birth certificate. Similarly, father sometimes believe that if their name is on the birth certificate they are automatically guardians. This is also not the case.
- That if you live with someone long enough, they become your “common law” wife or husband.
There is actually no such thing as a common law spouse. Your rights arise if you qualify as a Cohabitant under the 2010 Civil Partnership and Certain Rights and Obligations of Cohabitants Act. If you can prove you are financially dependent on the other person and are either living together for five years or living together for two years and have children, you may have a claim.
We are very aware of the complexities involved in separating and divorce and we have compiled a process sheet with the steps involved, which you can download here.