Usually, the pressing question from new clients who are looking for a separation or divorce is – how much will it cost and how long will it take. The reply is – how long is a piece of string? It is not possible to estimate the length or the cost until an initial period into the case and when it becomes clear the level of cooperation coming from the other side, only then can one predict with any certainty what course the case will take. Where there is good communication between a couple, an ability to move on with their lives and resolve matters quickly with a minimum of pain and cost – everything could be concluded within a matter of months. However, where the issues are complex, in terms of children or finances, where there is poor communication, a real or perceived hiding of assets, where one of the parties may suffer some form of psychological problem, you could be looking at up to two years before the case is finalised and even longer, in some cases.
Where it is obvious that there is not a shared willingness to move things along, and where a Separation Agreement is either unsuitable or unlikely to be achieved, it is generally advisable to get the court proceedings going sooner rather than later. The first step in that process is the sending of an introductory letter to the spouse or partner. This is one of the most important pieces of correspondence in a family law case. Where you have a couple whose communication may have broken down, who may be struggling to cooperate as parents, who are typically in a state of heightened anxiety about their future social and financial well-being, the receipt of a solicitor’s letter containing allegations of blame or misconduct and threating court orders – can be absolutely incendiary. It is best if that first letter is simply used as an introduction, an acknowledgment of the sad fact that the marriage appears to have irreconcilably broken down and a desire to sort out matters in an amicable and cooperative fashion. The letter calls upon the spouse to seek legal advice and nominate a solicitor to represent them. The letter should set a tone of professional, forward-looking co-operation which is important to an early and economic resolution of the couple’s issues. If there is no response to that letter, it must be followed within a couple of weeks by a second letter, more firm in tone, setting out a timeframe and reiterating the desire for an amicable resolution of the issues. It notifies the spouse that proceedings are being prepared and will be served on them or a solicitor of their choosing within the coming weeks. And, again advising the other party to seek legal advice.
Meanwhile, the actual proceedings are being prepared and they consist of two or three documents:
The Civil Bill which sets out the period of time from when the marriage has broken down and states what orders the client is looking for i.e. a judicial separation or a divorce and orders in relation to the children, the property, and maintenance, where applicable.
The Civil Bill must be accompanied by an Affidavit of Means, which sets out the financial position today of the applicant client in terms of income, outgoings, assets, and debts. The Affidavit of Means of both parties must be accompanied by vouching for documentation and you should note that couples are entitled to minute detail in regard to each other’s finances – tax returns, end of year accounts, payslips, P60s, bank, credit union and credit card savings etc.
Where there are dependent children an Affidavit of Welfare outlining the care arrangements for the children is required. All court documents must be filed with the Circuit Court Office. The Responding spouse then has 10 days from receipt of the proceedings, to file what is called an Appearance which is simply to state that they are appearing in the matter. They have also 21 days within which to file a Defence and Counterclaim, which corresponds to the Civil Bill, together with their Affidavit of Means and Welfare. In reality, the courts will afford much more time than that. Perhaps because of the particularly high regard for the institution of marriage in this country, before an order to dissolve a marriage is granted, the Irish courts want to be absolutely satisfied that due notice and every opportunity has been afforded to the other spouse to represent themselves in the matter.
A good development recently is the introduction of Case Progression, where the two solicitors meet with the County Registrar who investigates what needs to be done to progress the case to a hearing and who can make orders in relation to disclosure of financial information etc. Not only does this speed up the progress of a family law case, but it significantly reduces the amount of correspondence and negotiation that has to take place between the parties directly, thereby also reducing the risk of increasing hostility. As every time a solicitor’s letter goes out to the other side – there is an impact -and that is commonly not a positive one!
The County Registrar will either set the case down for hearing or grant the parties permission to serve a Notice of Trial when either all of the necessary information has been exchanged or the parties are in agreement that the case can proceed. Where one of the parties is dragging their heels, reluctant to comply with orders, or fails totally to file any papers, the other spouse can apply to the County Registrar. Twice a month, the County Registrar has a list of applications by way of Notice of Motion, where an order can be sought against the other side either to produce the necessary financial or other documentation and ultimately to set the case down for hearing, in default of papers being filed by the other spouse. A typical default discovery order made by the County Registrar would be for bank, credit card statements to tax returns etc for a 12 month period, however depending on the individual circumstances of each case, the disclosure order can go back 5 years and beyond for particular information if the court is persuaded there are questions to answer. In complex cases, frequently the party seeking financial information will engage the services of a forensic accountant, which may add significantly to the length and complexity of the disclosure process.
Generally, in family law cases each party pays their own legal costs. But where there is a complete failure to engage and one party is forced to do all the legal work and make all the applications, some costs may be awarded for these interim applications. The County Registrar has the authority to make costs order against an uncooperative spouse, who is failing to engage and all the legal work falls on the Applicant spouse. However, in practice, it is less than common to have costs orders made in family law cases.
An estimated time frame for a family law case can be between 1 to 2 years, occasionally shorter occasionally longer, all dependent on the level of cooperation and complexity of the particular case. Cases which involve significant parenting or psychological issues in regard to the children, or which require an investigation of the financial history can become extremely protracted, with a serious escalation of legal costs, where there is an inability or unwillingness to cooperate or to produce vouching documentation to verify the financial history.
The above is generalized information and may not apply to you. You should always get individual legal advice on your own particular circumstances from an experienced family law solicitor.
Brid Manifold is a family law solicitor and mediator based in Galway City. Email your questions in confidence to firstname.lastname@example.org