Only a Court can grant a divorce in Ireland. While there is the real prospect of applicants for judicial separation immediately applying for a divorce – which may result in “repeat trips” to Court – the fact is that a divorce is unobtainable without going to Court. A person cannot remarry without obtaining a divorce. For these reasons we are very slow to refuse an application for a legal aid certificate for divorce proceedings to a financially eligible person.
In relation to an application to for a legal aid certificate to take divorce proceedings, in order to determine if the requirements of section 24 and section 28(2)(d) are met, solicitors are required to give the following information to Legal Services as part of the application:
- Whether there is a Judicial Separation Order or a Separation Agreement already in place and if so the date of such Order / Agreement;
- Whether the client was legally aided for the purpose of the earlier proceedings / Agreement;
- Whether the applicant wishes to re-open the issues that were the subject of the Order / Agreement; and
- In the event that there is an earlier Order / Agreement, the prospects of successfully revisiting the provisions of the Order / Agreement.
For the purpose of determining the application, Legal Services should have regard to the following:
- The existence of a Judicial Separation Order / Separation Agreement;
- Whether the applicant was legally aided for the purpose of the earlier proceedings / Agreement; and
- In the event of such an Agreement, the prospect of successfully changing the core provisions and particularly the provisions in relation to property / assets and pensions, of the Order / Agreement.
If Legal Services determine that there is little or no prospect of the provisions of a Judicial Order / Separation Agreement being revised by a Court, a legal aid certificate should be granted but limited to making the primary application (for a divorce) and for an Order on foot of section 18(10).