Is There Any Advantage in Being the Person Who Starts the Separation Process?
There is no advantage in being the first person to take proceedings. In reality it is the spouse who is most aggrieved with the conduct of the other spouse that makes the move to separate whether through mediation or through court proceedings. Statistics in Ireland show that the wife is generally the applicant. It is the person who lodges the application gets to tell the story first if the matter goes to a hearing however court will always hear two sides of the story before making a judgement on any particular marriage.
There has been a move in recent years to ensure that all necessary documents and information are provided to each party by the other well in advance of the hearing. There is a process now called Case Progression Hearing which after proceedings are issued is meant to outline the case to be made by both parties to each other. In particular it outlines on 2 documents what the circumstances of the parties are. These are Affadavit of Means and Affadavit of Welfare.
They complete an Affidavit of Means and an Affidavit of Welfare. The first outlines the assets and liabilities for the parties. The second outlines the position in relation to children (if any) their housing needs and their health needs and any special requirements they may have in relation to education and upbringing.
This gives the court an all-round view of the family which they’re asked to make major decisions in relation to their future on.
What can be a problem is getting the other party to get involved in the proceedings. There can be frustration by refusing to accept registered post which might contain either the original Civil Bill claim for separation. This may mean a further application to the court to serve by ordinary post.
Especially were somebody is appearing and running their own case with no legal advice they will need to follow the Rules of the Court to ensure when the matter comes to a hearing they have all the paperwork in order.
It may be that the party issuing the proceedings is determined to bring about the separation and has employed legal advisers. Sometimes the defendant, (generally called the Respondent in Family Law proceedings) may not have legal advice and may have to have the procedure explained as the case continues.
In our experience judges are very helpful to people who run their own Family Law case but as always you’re at a disadvantage if the other side have somebody who is familiar with the law and can ask the right questions in relation to what portrays the client’s best case.
In summary whether you start the proceedings or are defending proceedings started against you an experienced legal adviser is always good to have on your side.