DIVORCE: A straightforward uncontested divorce can be granted in less than eight weeks from the start of proceedings, but where there is disagreement, it can take from 12 months to two years before even reaching a hearing, writes Clare O'Dea.

Marriage is not something couples enter into lightly and neither is divorce. The upheaval and emotional cost of divorce to both parties and especially to the children can be severe. But just like marriage, divorce is not an event, it is a process that will be part of the life of the couple for several years and eventually part of their past.

More than 12,000 people have sought decrees of divorce since its introduction in February 1997. Available statistics at the time showed there were up to 80,000 people in the State whose marriages had broken down.

The flood of applications that was anticipated after the divorce referendum never really materialised. There were 3,339 applications for divorce in the legal year 2000-01 and 1,592 for judicial separation in the same period.

Divorce is about making a binding and long-lasting agreement between the two parties about how everything will be managed and shared or divided into the future. It is also about ending the marriage once and for all as inheritance rights are automatically forfeited on divorce.

The questions of custody and what happens to the family home can provoke the strongest feelings and cause difficulties in negotiating an agreement or in litigation.

Where there is a financially dependent spouse, organising financial provision is a complex area, dealing with everything from maintenance payments to pension rights.

The financial outcome of a divorce settlement will depend on several factors, according to Ms Jennifer O'Brien, family law solicitor with McCann FitzGerald.

The three most important factors are the financial resources available, the attitude of the spouses, and the legislation, including recent case law, she says.

"I would encourage my clients to co-operate fully and willingly with the discovery process. Failure to co-operate at the information-gathering stage makes the case more difficult to settle and non-co-operation may be taken into account by the judge."

With divorce you do have to go to court, but reaching agreement on the financial issues beforehand will reduce court costs. The solicitor will give his or her client guidance on what is reasonable and fair but it is up to the client to make the decision on any offer that is made.

When a married person first approaches a solicitor to talk about divorce, the solicitor must inform them about alternatives to divorce.

Before the institution of proceedings, a solicitor must discuss the possibility of reconciliation with the applicant and give him or her the names and addresses of persons qualified to help effect a reconciliation.

"By and large, by the time it gets to lawyers, at least one of the couple has made their decision but there are also people who come in just to find out where they stand," says Ms O'Brien.

The solicitor must also discuss the possibility of engaging in mediation to help effect a separation or divorce on an agreed basis.

In mediation, the separated couple are encouraged to work out mutually acceptable arrangements on parenting the children, financial support, the family home and other assets.

According to Ms O'Brien, it is the mediator's role to meet the couple and try to create a climate of co-operation to help couples to reach agreement that they believe to be fair, equitable and workable.

Some couples will be content to use a mediator and may even have their lawyers involved at the end of a phone. Others find the negotiations too difficult and do not feel equipped to deal with the complexity and trauma of the situation.

However a couple reaches agreement, they will have to apply to the Court to make sure it satisfies the requirements of the Constitition. The Circuit Court, or more particularly the Circuit Family Court, deals with most family law applications.

In Ms O'Brien's experience, "there is an inevitable diminution in the standard of living for most families after divorce or separation".

This is clearly because the couple will end up running two households on about the same income.

It is the wife in most cases who applies for divorce. In the legal year ending in 2000, some 83 per cent of applications for judicial separation were made by women and 61 per cent of divorce applicants were female.

Ms O'Brien believes this is because women are more likely to be the dependent spouse caring for children in the home and therefore more likely to need the financial relief.

A straightforward uncontested divorce can be granted in less than eight weeks from the point of starting proceedings, says Ms O'Brien.

Contentious divorces can take 12 months to two years before even reaching a hearing. A case cannot go on until all financial information has been exchanged and sworn statements have been filed.

There is a legal obligation on both spouses to maintain the other, although this obligation tends to become focused on the spouse with the highest earning capacity. The court can be asked to order one spouse to make financial provision for the other.

According to McCann FitzGerald, the maintenance depends on the circumstances of both the husband and wife and where the husband is the higher or sole earner, the court takes into account:

• the wife's reasonable needs for herself and her children;

• the true income of the husband;

• his reasonable needs;

and the ability of the wife to generate an income for herself.

There is no fixed formula for working out a financial settlement. The court does not operate on percentages and neither do lawyers. Many factors are taken into account, including the ages of the spouses, the duration of the marriage and how long the couple lived together.

The standard of living enjoyed by the family before separation occurred is also taken into account as is the effect on the earning capacity of each spouse of the marital responsibility assumed by each while they lived together.

An applicant for divorce has to apply to the Circuit Court for the area in which they are ordinarily resident for at least the last year or the area where they conduct business. The High Court also hears divorce cases and is open to anyone but usually deals with cases where the assets are significant.

Irish divorce legislation is unusual in that it does not provide for a clean break. Divorced individuals have the option to return to court, even many years after the marriage has ended, to look for changes in the financial settlement to reflect changes in circumstances.