England and Wales vs Ireland – more than a border between us

With Brexit negotiations continuing, Ireland has been the subject of much attention recently.

But no matter how ‘hard’ the border between Ireland and the UK may (or may not) be, the current differences in family law legislation between Ireland and the jurisdiction of England and Wales will continue to set the countries apart pending any legislative change.

Whilst Ireland has traditionally been a country of conservative family law practices, and in some respects remains so, there have been significant reforms during the last 30 years which mean Ireland is fast becoming a country to lead the way for the future of family law in England and Wales.

Grounds for divorce

In England and Wales a petition for divorce must be based on one of five facts in support of irretrievable breakdown of the marriage. These can be summarised as: a) Adultery, b) Unreasonable behaviour, c) Desertion, d) Two years separation with consent and e) Five years separation without consent.

Whereas in Ireland a divorce cannot be sought unless you have lived apart for four years. This is one key area where Ireland remains behind the times. However there is a referendum in May 2019 to consider reducing this to a period of two years living apart, so watch this space!

Judicial Separation

This is available, but rarely pursued, in England and Wales as an alternative to divorce proceedings.

However, judicial seperation is a common precursor to divorce in Ireland due to the requirement of living separately for four years before issuing divorce proceedings. Many will enter into a deed of separation or issue an application to determine their financial arrangements upon a judicial separation, and pursue a divorce thereafter.  This is particularly important for those wanting to extinguish the automatic rights of succession in Ireland for inheritance purposes, as a spouse will otherwise automatically inherit a minimum percentage of the other’s estate on death.

Financial relief on divorce / judicial separation

In England and Wales financial claims are governed by section 25 of the Matrimonial Causes Act 1973 which lists a range of factors the court considers when determining whether a financial settlement is ‘fair’ and meets ‘needs’. The welfare of any children is paramount and there is a duty on the court to consider a clean break where possible.

In Ireland financial claims are governed by similar statutory factors within the Family Law Act 1995 with the objective of ensuring a financial settement provides ‘proper provision’. However, there is no duty to achieve a clean break. A child’s legal dependance continues until 23, if in full time education at college or university, whereas in England and Wales it ends at 18 or completion of full time secondary education, unless agreed or ordered otherwise.

Both jurisdictions offer a similar range of financial orders. However, in Ireland, a pension adjustment order is considered a last resort and only made if proper provision cannot be achieved through division of other assets. It is then made by reference to the ‘period of reckonable service’ (years of the relationship/marriage), with usually a 50% division of the same.

Financial disclosure is required in both jurisdictions. In England and Wales the document is a Form E with 1 – 2 years of supporting documents. In Ireland it is an Affidavit of Means (similar to a Form E) with 1 – 3 years of supporting documents.

Pre-nuptial agreements

Pre-nuptial agreements are not automatically enforceable in either jurisdiction but are a relevant factor to consider in all circumstances of the case.

Family home owned by one spouse

In England and Wales the other spouse can register a Matrimonial Home Rights Notice against the property. This alerts any potential buyer, transferree or mortgagee that they have a right to occupy the property. It is a simple process with no registration fee. However, it does not confer any automatic right to consent to any transaction. It is only an indicator of a third party right of occupation and that it would be prudent to seek consent before proceeding with any transaction.

In Ireland, if the family home is owned by one spouse, there is an automatic requirement that the other spouse must consent to any sale, transfer, re-mortgage or conveyance of the property.

Same Sex Marriage

Legislation to allow same sex marriage was passed in England and Wales in July 2013 and came into force in March 2014.

This was followed closely by an Irish referendum on same sex marriage and amendment to the Irish constitution in 2015 recognising marriage in law between two persons ‘without distinction as to sex’.

Cohabitation rights

Perhaps the most notable difference is the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 which came into effect in Ireland on 1 January 2011. This gives cohabitants rights to make financial claims for maintenance, property adjustment, pension adjustment and relief from the estate of a deceased cohabitant partner. To qualify as cohabitants you must have lived together in an intimate or committed relationship for at least two years and have a child together, or have lived together for five years if you do not have a child together. The financal claims are not the same as available to spouses on divorce or judicial separation, but is an important safety net.

This is in stark contrast to England and Wales where cohabitants still have no automatic legal right to financial claims following a relationship breakdown, regardless of the length of the relationship, or if they have children together.

Mediation

Both jurisdictions place an emphasis on resolving matters in mediation and outside of court, more so in England and Wales since the introduction of mediation information and assessment meetings (MIAMS) in April 2014 and in Ireland since the Mediation Act 2017.

At the outset of any family law case, it is essential to consider the jurisdiction in which proceedings should be issued and the alternatives to court.  You should always seek advice from a family lawyer with international knowledge and expertise. This will be all the more important following Brexit. At Anthony Gold we have a team of family lawyers experienced in international matters. Please contact our Family and Relationships department to discuss how we may be able to help.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*