Solicitor Orlagh Sharkey says that what people expect from a divorce can sometimes differ from what happens in reality. Orlagh is head of the Family Law Department at Callan Tansey Solicitors and she answered some frequently asked questions about divorce, separation and access on Today with Claire Byrne. While some of the talking points from their chat are covered here, legal professionals will be in a position to give advice that is relevant for individual relationships, as Orlagh says that every family situation is different.
When divorcing couples are caring for children jointly, there is a process of deciding where the children will live and what amount of time they will be spending with each parent. Orlagh clarifies a common misunderstanding about what the term "access" means in the context of separation and divorce:
"The perception can quite often be that the parents have the right to access, whereas in reality, access is the right of the child, not the parents. So when the court is deciding as to how access should take place, it will factor in what is in the best interest of the children, bearing in mind the commitments and availability of the parents."
The family law solicitor says that where the courts are involved in determining access, there is no hard-and-fast rule in place that is applied to every family:
"I think there was a traditional view that access should be every second weekend for one party and the other parent would have the children. More and more what we’re seeing in the courts is that judges are inclined to make orders directing 50/50 division of access. The access arrangement is very specific to each family and as cliché as it sounds, no two families are the same."
In balancing the best interests of the children and the circumstances of the parents, the courts will sometimes take the wishes of the child or children into account. This happens when a judge requests a Section 32 or "Voice of the Child" report, Orlagh says:
"It’s where an independent expert is engaged to meet with the child and meet with both parents and make and assessment in relation to the family situation and put before the court what the child is saying in relation to access and what the child might like to see happen."
When it comes to dividing assets like the family home, Claire raised the issue of divorcing during a housing crisis, where it means that effectively, one family now needs two homes. Orlagh says that some people decide to come to a compromise arrangement, as it’s just not possible to make the money stretch:
"When you have a separation situation, what you are proposing to do is dividing up one property and you now have to pay for two individual households, with the same amount of finance available. There are people out there who simply can’t afford to do that and they have reached the decision to stay in the one property, because they can’t afford alternative accommodation."
It happens sometimes that people looking for a divorce think that the "bad behaviour’ of their partner, as they see it, might play a role in determining the outcome of the divorce. Orlagh says that we have what’s called a 'no fault’ system of divorce in Ireland. She says if the behaviour of one or both parties is to be considered, the bar is set pretty high for what counts as relevant in a divorce. She says that cheating, for example, is probably not going to figure in the judge’s mind one way or another:
"The circumstance in which behaviour would be taken into account is when it’s deemed to be ‘gross and obvious’, that’s the test that’s applied by the Irish courts. That’s a very high threshold in terms of behaviour. Quite often I’m asked in terms of extra-martial affairs, are they taken into account. In reality, they’re not taken into account in court because they are not deemed to satisfy the test of ‘gross and obvious’ behaviour."
Orlagh has more to say on what kinds of thing can be considered by the judge in divorce proceedings, the conditions for seeking a divorce in Ireland, the difference between separation and divorce and the role of mediation in the full interview which you can find here.