In an uncontested divorce case the court usually makes the orders reflecting the spouses' wishes. However, when it grants a Decree of Divorce the Court may also make Orders in relation to custody/access (if there are children to the marriage), the payment of maintenance and lump sums, the transfer of property, the extinguishment of Succession rights, pension rights etc.
The fact that the spouse must have lived apart for at least four of the previous five years usually means that the spouses have a Separation Agreement although this is not always the case. It is not a prerequisite in seeking a Divorce to have had a Separation Agreement. You should note that The Court can reverse any term of any previous Separation Agreement between the spouses particularly if the circumstances of either spouse has changed.
In granting a Divorce, a court in Ireland has the power to make a wide variety of other Orders. The most usual court orders relate to the following:
- Custody of and access to children
- Maintenance and lump sum payments
- Ownership of the family home
- Occupation of the family home
- Ownership of property and other assets
- Pension rights
- Succession rights.
There is no standard or usual amount of maintenance payable just as there is no standard set of circumstances in which a court will make a particular order in relation to the family home. When considering what orders to make in each particular case, a court will consider all of the circumstances of the family and will look in particular at the following:
- The current and likely future income, earning capacity and assets of each party
- The current and future financial needs and obligations of each party
- The standard of living of the family before the break-up of the marriage – the court will take this into account, but in reality it will accept that, in many cases, separation will result in a drop in the standard of living of both parties
- The age of each party, the duration of the marriage and the length of time the parties lived together
- The accommodation needs of each party
- The input each spouse has made and is likely to make to the welfare of the family – this includes any contribution made that increased the income and financial resources of the other party
- The degree to which the marriage affected each party's ability to earn
- The conduct of each party
- The value of benefits given up by a party because of the Divorce
- The rights of any other person affected by the divorce