I am still Having Sex with my Wife – Am I Entitled to a Judicial Separation?

A client recently came to me very upset saying that he suspected that his wife was having an affair and she now wanted to separate from him. They have young children and he described to me in very emotional terms how if anybody came to his house, they would think they were the perfect couple. They get on well with each other and the children are all happy and completely oblivious to the problem their parents appear to have.

My client said that he wanted to contest his wife’s application for a judicial separation because he said they have been having a physical relationship on a regular basis and this had been ongoing up until about a month ago. He said that he believed that unless you had been living apart for over a year, you are not entitled to a judicial separation.

Unfortunately, he was not correct. You are entitled to obtain a judicial separation if you can prove that:-

• One party has committed adultery.
• One party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them.
• One party has deserted the other for at least a year at the time of the application.
• The parties have lived apart from one another for one year up to the time of the application and both parties agree to the decree being granted.
• The parties have lived apart from one another for at least three years at the time of the application for the decree (whether or not both parties agree to the decree being granted).
• 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.

This final heading is the heading under which my client thought he would be able to contest his wife’s application for a judicial separation. It is certainly the most common ground upon which people apply for a judicial separation. However, I had to advise him that if the relationship between them has broken down and the court decides that it had broken down because he had behaved in such a way that it would be unreasonable to expect his wife to continue to live with him, then she may still be entitled to a divorce. This is a very grey area and if there are any difficulties at all in a relationship, it would be possible to make an argument that the wife in the example I have given above would be entitled to a divorce if she can show that her husband was acting in a selfish manner or an aggressive or unpleasant manner to the extent that it would be unreasonable to expect her to continue living with him. This is probably the argument that his wife is going to make.

The decision he has to make is whether he should contest the matter knowing that in doing so he is prolonging a relationship, which she is vehemently stating is over. If he finds out that his wife is having an affair, then all this will do is give him grounds for a judicial separation.

It’s a difficult decision. My advice to him was to sit down with his wife and if the relationship between them is as civil and amicable as he tells me it is, then there has to be a reasonable prospect that she will agree to go to counselling to see if whatever problems they have can be resolved.

That is sensible and reasonable but the problem is that if she is having an affair then commonsense and logic may fly out the window.

Kevin Brophy

Brophy Solicitors

Recognition of Foreign Divorces

There are an awful lot of people in Ireland, who have committed bigamy and do not know it.

I say this because I have recently had to advise two separate clients that their divorce would not be recognised if it ever came before a court in Ireland and as a result, their second marriage will not be recognised here in Ireland.

For instance it is relatively easy to obtain a divorce in most of the states in the US.

In many of the states in the US, you only have to be resident in the State for six months prior to making your application for a divorce.

The problem however is that while your divorce might be recognised in the country where you obtained the divorce, that does not automatically mean it will be recognised here. The basic rule in Ireland is that foreign divorces will be recognised here provided one of the parties was domiciled in the country or the State where they obtained the divorce.

This is an extremely complicated area but the one thing that can be said with certainty is that if you are domiciled in Ireland (and by domicile, I do not mean residence) then your divorce will only be recognised in Ireland provided your partner was domiciled in the country where the divorce as obtained.

So what are the consequences if it turns out that your first marriage is still legal and binding? It means that if you die, your present wife is not entitled to automatically inherit and in fact if you died without leaving a will, your first wife - who you may have thought you had divorced 20 years ago or longer - could be entitled to as much as 2/3rd of your estate.

If you have any concerns, check it out with a solicitor.

Kevin Brophy
Brophy Solicitors

What is Proper Provision in Divorce Cases?

Many people, particularly wives, seem to think that if they divorce, they are automatically entitled to 50% of everything their husband has. Often the husband thinks he has the same entitlement. The position is set out in the Family Law (Divorce) Act, 1996, which states that every case will be the decided on its own particular merits but that the court will specifically take the following into account in deciding what constitutes proper provision:

• The income and earning capacity and financial resources of both spouses.
• The income and earning capacity and financial resources of both spouses.
• The financial needs, obligations and responsibilities which each spouse has or is likely to have.
• The standard of living of the spouses before the proceedings.
• The age of the spouses and the length of their marriage.
• Any physical or mental disability of the spouses.
• The contribution, which each of the spouses has made or is likely to make to the welfare of the family.
• Whether the earning capacity of either of the spouses has been affected by the marriage.
• The income and benefits to which either spouse is entitled.
• The conduct of each of the spouses.
• The accommodation needs of either spouse.

The benefit (e.g. under a pension scheme) which one of the spouses may forfeit by virtue of the divorce.

The rights of any third party affected by the divorce.

This is extremely wide but at least it gives you an idea what the court can take into account before granting a divorce.

Many people believe that the court is no longer interested in the reasons why a marriage broke down. In other words, they do not attribute blame. As you can see under (i) above, the conduct of the spouses can be very relevant. Under (d) above, the length of the marriage is very relevant and is particularly so in cases where the marriage was short lived. An argument can be made under (b) above that if one spouse has not worked for many years then it can be argued they have an obligation and a responsibility to perhaps look for employment in order to ease the financial burden on the other spouse.

Another issue that increases tension where a relationship is breaking down is where one spouse, usually the wife will say that the husband has to leave the family home and he can get himself a flat somewhere. Under (j) above, it will be seen that the accommodation needs of either spouse must be taken into account, not just one of them. If the man in the above example has children, he is quite entitled to argue that if he has to have any future relationship with his children, he needs to be able to look after them and have arrangements in place to provide for their accommodation as well as his own accommodation and this will mean that he needs accommodation appropriate to look after his children and look after them overnight.

In my experience, bad conduct of one of the parties tends to get glossed over in family law proceedings. If it is relevant to the justice of the decision the court has to make, then it should not be ignored.

This is extremely wide but at least it gives you an idea what the court can take into account before granting a divorce.

Many people believe that the court is no longer interested in the reasons why a marriage broke down. In other words, they do not attribute blame. As you can see under (i) above, the conduct of the spouses can be very relevant. Under (d) above, the length of the marriage is very relevant and is particularly so in cases where the marriage was short lived. An argument can be made under (b) above that if one spouse has not worked for many years then it can be argued they have an obligation and a responsibility to perhaps look for employment in order to ease the financial burden on the other spouse.

Another issue that increases tension where a relationship is breaking down is where one spouse, usually the wife will say that the husband has to leave the family home and he can get himself a flat somewhere. Under (j) above, it will be seen that the accommodation needs of either spouse must be taken into account, not just one of them. If the man in the above example has children, he is quite entitled to argue that if he has to have any future relationship with his children, he needs to be able to look after them and have arrangements in place to provide for their accommodation as well as his own accommodation and this will mean that he needs accommodation appropriate to look after his children and look after them overnight.

In my experience, bad conduct of one of the parties tends to get glossed over in family law proceedings. If it is relevant to the justice of the decision the court has to make, then it should not be ignored.

Kevin Brophy
Brophy Solicitors