Ask a solicitor: We're separated but stuck together because of housing

The difficulty is that I have been reading about the requirements that need to be satisfied in order to get a divorce decree and one of them, I note, is that it must be two years living apart. 

The difficulty with this, given the lack of housing, is that we have both been living in the same house for the past two years, even though we are no longer together. What advice do you have?

Dear Reader,

A decree of divorce dissolves the marriage and allows both parties to remarry.

To get a divorce in Ireland, you must meet certain conditions. If you meet these conditions, you can apply to the court for a divorce decree. You must live apart from one another for at least two out the previous three years before you can apply for a divorce. Before December 1, 2019, this was a four out of a previous five years.

Parties may not be living apart if they can demonstrate to the court that they are living separate lives.

In the case of McA vs McA, a husband had returned to the family home, agreeing to pay a rent of £750 per month and later increased it up to £1,000. The applicant, in this case, sought a judicial separation and the husband counter-claimed, seeking a divorce. 

The applicant challenged the husband’s counter claim on the basis that he could not satisfy the living apart requirement as she shared the family home with the applicant. The court held that, although the husband lived in the same house as the applicant, it was not activated by a desire to restart the marriage. 

The judge stated: 'I do not think one can look solely at where the parties physically reside, or at their mental or intellectual attitude to the marriage. Both of these elements must be considered and in conjunction with each other'

In the present economic climate, this has relevance where a separated couple may not have alternative accommodation to revert to upon a breakdown of their marriage. 

Thus, a couple could reside in the same property and still be considered living separately for the purposes of family law relief in either a judicial separation or a divorce. The courts normally consider whether the parties have behaved as a couple during the period in question.

Amongst the considerations of the court, are the following:

• Did the couple have an intimate relationship (sexual or otherwise) during the period in question?
• Did the couple holiday together or present themselves to the world as a married couple during the period in question?
• Did the couple perform the normal incidents of married life for each other such as cooking, cleaning, etc?
• Do I have to instruct a solicitor?

You do not have to use a solicitor or a barrister when getting divorced. If you wish, you can represent yourself. However, there may be complex legal issues that may make it very difficult to apply for a divorce without any professional help.

If you and your spouse disagree with any issue, you are strongly advised to see a family law solicitor. You and your spouse should not use the same solicitor.

The court shall ensure that such provision as the court considers proper exists, having regard to the circumstances, or will be made for the spouses and any dependant member of the family concerned.

The other condition of divorce is either you or your spouse must be domiciled (living permanently) in Ireland, where the application is made, or have lived in Ireland for at least the one-year period before the application is made, and there must be no reasonable prospect of reconciliation.

Karen Walsh, from a farming background, is a solicitor practising at Walsh & Partners Solicitors, 17 South Mall, Cork, and 88 Main St, Midleton, Co Cork, and also the author of 'Farming and the Law'. Walsh & Partners also specialises in personal injury claims, conveyancing, probate, and family law.

Email: info@walshandpartners.ie 

Web: www.walshandpartners.ie

• While every effort is taken to ensure the accuracy of the information contained in this article, Karen Walsh does not accept responsibility for errors or omissions howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.