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When may a Court grant a divorce?

Benjamin Franklin said nothing is certain except death and taxes.  From a family law point of view nothing is certain except death and divorce since only the death of a spouse or a divorce can end a marriage.  But when may a Court grant a divorce?

The Family Law (Divorce) Act, 1996 governs divorces, and provides that a Court may grant a divorce order only if:

(a)        at the date of the institution of divorce proceedings, the spouses have lived apart from one another for a period of, or periods amounting to at least two years during the previous three years,

(b)        there is no reasonable prospect of a reconciliation between the spouses, and

(c)        proper provision exists or can be made for the spouses and any dependent members of the family if the divorce.

These requirements must be read together, in other words all three must be present for the Court to exercise its discretion to grant a divorce order or not.

According to the Court Services 2020 Annual Report there was an increase of 29% in the number of divorce applications in 2020 compared to 2019.  In 2020 there were 5,266 divorce applications, 1193 more than in 2019.  The reason behind this increase was the reduction in the waiting period for a period of, or periods amounting to at least two years during the previous three years compared to four years during the previous five years prior to the change in December 2019.

Note that the term “living apart” is given a very specific meaning for the purpose of a divorce, and a spouse can satisfy this requirement even if they continue to live together in the same dwelling.  The two-year waiting period is therefore not triggered by actually separating but would generally start much earlier whilst the parties still lived together under the same roof, albeit not as happily married spouses generally would.

The second requirement is effectively the irretrievable breakdown of the marriage.  The Court must be satisfied that there is no reasonable prospect of reconciliation of a normal marriage relationship between them.  This breakdown can be caused by many reasons, for example infidelity, the parties may have lost the love and affection for one another, and also the attitude of the parties towards continuing with the marriage.

Thirdly the parties and their dependents must be properly provided for following the divorce. A Court will for example consider the financial needs of the spouses and dependents and their income, their earning capacity (if any), property and other financial resources to determine if all the parties will be properly provided for after the divorce.  If not, a divorce order will not be granted.

If you need any advice on getting divorced, kindly email Carrie McDermott at carrie.mcdermott@mdmsolicitors.ie or Mornè Gouws at morne.gouws@mdmsolicitors.ie.

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Straight from the Pocket – Costs Orders against Solicitors

The Irish Times reported on the 4th November 2021 about a life-long Dublin supporter whose claim for damages against the GAA was dismissed by the Circuit Court.  In dismissing the claim, the Court also awarded costs in favour of the Defendant.  The Defendant then asked the Court to order that the Plaintiff’s Solicitors and not the Plaintiff herself pay the Defendant’s legal costs.  It was argued that the Plaintiff’s Solicitors were repeatedly warned about the near certainty of their client’s case failing, but that they continued with her claim.  The Court refused to grant an order for wasted legal costs against the woman’s Solicitors, but Judge John O’Connor said that a warning had to be sent out in relation to cases where Solicitors have been repeatedly told of the near certainty of their client’s case failing.

This type of order, where a Solicitor is ordered to personally pay the legal costs is known as an Order de bonis propriis, which literally means “straight from the pocket” (of the representative) or “out of one’s own pocket”.  In the South African case of Lushaba v MEC for Health, Gauteng 2015 (3) SA 616 (GJ) the Plaintiff sued the Defendant on grounds of medical negligence caused by the staff of a provincial hospital.  The Court found in favour of the Plaintiff and awarded costs de bonis propriis against the Defendant’s attorney, largely due to the decision to defend the action while there was no defence at all.

In Lushaba v MEC for Health, Gauteng the Court said that costs de bonis propriis are not easily awarded, but that it would be done if:

  1. There was negligence on the part of the legal practitioner of a serious degree.
  2. There was conduct which substantially and materially deviated from the standard expected of the legal practitioner such as dishonesty, obstruction of the interests of justice, irresponsible and grossly negligent conduct, gross incompetence, and grossly negligent conduct, litigating in a reckless manner, misleading the court, gross incompetence, and a lack of care.

In Ireland, Order 99 r.2(1) of the Superior Court Rules provides that the costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts.  O.66 r.1(1) of the Rules of the Circuit Court provides that the granting or withholding of costs of any party to any proceeding in the Court shall be in the discretion of the Judge or the County Registrar as the case may be.

Irish Courts clearly have a discretion when it comes to awarding costs.  But is this discretion wide enough to allow a Court to order a Solicitor, who is not a party to the proceedings but only representing a party, to personally pay the legal costs of the proceedings? Having regard to the above and the warning by Judge O’ Connor in the GAA case, it would seem that the Circuit Court can order a Solicitor who is only representing a party to personally pay the legal costs of the proceedings.

Mornè Gouws