‘Overwork, not adultery, is the cause of most marriage splits’
“ONE of the big reasons for marriage breakdown is overwork. People are not physically present at home or they don’t engage.
“It is not adultery. Adultery tends to happen when the marriage is over, when people have lost interest,” said solicitor Keith Walsh.
The surge in divorce over the past two years has been fuelled by a considerable number of cases involving self-employed people, company directors, business owners and entrepreneurs, according to Mr Walsh, one of the country’s leading family law practitioners.
“They were kind of obsessed with their businesses during the recession and either they put too much work into the business and things haven’t worked out on the home front, or possibly they were so consumed with the business they didn’t realise that things weren’t working out,” he said.
The 45-year-old Mayo-born solicitor has practised in the area of legal separation and divorce since 2001 and is chairman of the Law Society’s child and family law committee. His Dublin-based firm Keith Walsh Solicitors scooped the ‘family law team of the year’ prize at this year’s Irish Law Awards.
He said legal separations and divorces were about much more than spouses simply splitting from each other. There are many other things to be dealt with.
These include access to and custody of the children; what becomes of property and other assets such as savings, shares and pensions; and dealing with liabilities, such as loans and mortgages.
The solicitor said this was why so-called DIY divorces, where someone gets advice from an unqualified person to save costs, can be a big mistake. People end up being badly advised and may not have a full understanding of their rights.
“For example, you may waive your rights to your
spouse’s pension without ever realising how valuable that is,” said Mr Walsh.
A key part of his job is advising clients of their entitlements and the likely outcome if there is no agreement on a split of assets and the case ends up being fought out in front of a judge.
“A family lawyer will be able to give you the range of what could happen. If you can settle within that range, it will be settled,” he said.
“Only a very small percentage of court cases are fought out in court fully.”
When agreements are reached, they still have to be sanctioned by a judge.
There is no automatic presumption that all property will be divided on a 50/50 basis and the overriding priority of a judge will be to ensure there is proper provision for both spouses and their children.
This means ensuring both parents have somewhere to live that they can afford and, if possible, that they have provision for their old age. The judge will seek to ensure the children and their educational needs are also looked after.
“But a court can’t magic money that isn’t there. A court will make a decision within the confines of the available resources and income,” he said.
Factors examined by the court include the assets of both parties, what they spend their money on, their pensions, their physical and mental health, and the number and ages of their children.
Prenuptial agreements are not currently recognised in Ireland, while judges tend not to penalise a spouse for adultery as case law has set a high bar for misconduct.
A legal separation can be applied for if the couple has lived apart for a year. It deals with all financial issues but you remain married.
A divorce can only be obtained after the couple has been living apart for four of the previous five years.
The vast majority of divorce settlements are approved or fought out in the Circuit Court, with the High Court reserved for cases where the combined assets of the spouses is above €3m.
The solicitor said family law had become increasingly internationalised.
Clients may have split with a spouse who is living abroad, or there could be Irish people living abroad but their assets remain in Ireland.
Often one of the main issues is deciding where proceedings should be taken.
The law differs from country to country and an assessment has to be done of which jurisdiction is likely to provide the best outcome.