Republic of Ireland

Sources of Law

Contained in Acts of Parliament

Common law is another source, although during the 1970’s and 1980’s, it rapidly gave way to legislation.

Family Law Act 1995 deals with ancillary relief pursuant to judicial separation and the Family Law (Divorce) Act 1996 deals with divorce and ancillary relief.

Jurisdiction

Brussels II applies.

Domicile and Habitual Residence

Domicile is where an individual maintains his permanent home, in the country where he regards himself as belonging. Domicile in Ireland is acquired from an Irish-domiciled father, but can be changed to another country by establishing a life there.

Resident foreign employees will thus not normally be domiciled in Ireland.

Ordinarily resident in Ireland through the period of one year.

Conflict of Law/Applicable Law to be Applied

Lex fori

Pre-Nuptial Agreements

Courts are not required to enforce agreements although there is no decided case.

Divorce

The parties must have lived apart for four years out of the previous five and no prospect of a reconciliation. There must be adequate arrangements for the dependent children and other spouse.

Couples do not have to go through the process of judicial separation in advance of divorce. They must just have lived apart for a period or periods amounting to four out of the previous five and in limited circumstances can be said to be living in separate households within the same house.

Finances/Capital/Property

Courts are obliged to make proper provision for spouses. This does not mean equal division.

Finances/Maintenance

No principle of a “clean break” although courts will try not to interfere with a full and final settlement if that is what the spouses want.

Starting point is that each party is to maintain the other.

Courts have a very wide discretion taking into account a list of statutory factors.

Orders can be made after divorce.

Child Maintenance

Applications to obtain financial provision for dependent children can be made by (1) one spouse against the other under the Family Law (Maintenance of Spouse and Children) Act 1976

(2) a spouse against the other spouse, under the Family Law Act 1995 and Family Law (Divorce) Act 1996.

A child remains dependent until they reach the age of 23 if they continue in a full time education.

Cohabitants

Not recognised at present although a bill giving limited rights for cohabitants to seek financial support from each other is due to be published in the next few months.

Civil Partnership/Gay Marriage

In Ireland, the definition of marriage does not include same-sex couples. There is also no provision for the legal registration of same sex partnerships. The heads of a Civil Partnership Bill were published in June 2008 and the Bill is due to be presented in the next few months. The intended provisions are very similar to the UK Civil Partnership Act.

With thanks to Muriel Walls of McCann FitzGerald, Riverside One, Sir John Rogerson's Quay, Dublin 2. Ireland. www.mccannfitzgerald.ie