Family Law

Separation

Separation

A separation agreement is something that a couple can enter into if they can both agree on the terms upon which they will live separately.

Once the agreement is drawn up, and both sides are consenting, the agreement will become a legally binding contract detailing the parties rights and obligations towards each other. This is called a deed of separation. The issues that are usually dealt with in a deed of separation are;

  • An agreement to live separately
  • Arrangements regarding access to children
  • Property rights
  • Maintenance
  • Debts
  • Taxation
  • Succession rights.By application to the court, the deed of separation can be made into a rule of court. In such a case, the agreement can be legally enforceable if either party does not comply with the terms.

Judicial Separation

An application to the courts for a decree of judicial separation can be made by either party when the couple cannot agree to the terms of their separate living.
The court must be satisfied that:

  • There are grounds for the application.
  • Counselling and mediation have been advised for the couple.
  • The welfare of any dependants has been properly provided for.

If the court is satisfied that these terms have been met, a decree of judicial separation will be granted. This decree provides confirmation that the partners are no longer obliged to live together as a married couple.The issues of custody and access to children, payment of maintenance, the transfer of property and succession rights may also be addressed by the court by the issuance of an order.Applications for judicial separation are made either in the Circuit Court or the High Court. Cases are heard in private, as in all family law matters.If you already have a separation agreement which has been made an order of the court, then you cannot apply for a judicial separation.

A judicial separation application must be based on one of the following six grounds:

  • Adultery
  • Unreasonable behaviour
  • Desertion for at least one year at the time of the application
  • Both parties have lived apart from each other for one year up to the time of the application, and they agree to the granting of the decree.
  • Both parties have lived apart from each other for at least three years at the time of the application. It is not necessary, in this instance, for both parties to agree to the decree being granted.
  • Where it is determined by the court that a normal marital relationship has not existed between the spouses for at least one year before the date of the application.

The ground most commonly relied upon where a decree is granted is the final ground, as neither party has to be shown as being at fault.

Divorce

An application to the courts for a decree of judicial separation can be made by either party when the couple cannot agree to the terms of their separate living.
The court must be satisfied that:

  • There are grounds for the application.
  • Counselling and mediation have been advised for the couple.
  • The welfare of any dependants has been properly provided for.

If the court is satisfied that these terms have been met, a decree of judicial separation will be granted. This decree provides confirmation that the partners are no longer obliged to live together as a married couple.The issues of custody and access to children, payment of maintenance, the transfer of property and succession rights may also be addressed by the court by the issuance of an order.Applications for judicial separation are made either in the Circuit Court or the High Court. Cases are heard in private, as in all family law matters.If you already have a separation agreement which has been made an order of the court, then you cannot apply for a judicial separation.

A judicial separation application must be based on one of the following six grounds:

  • Adultery
  • Unreasonable behaviour
  • Desertion for at least one year at the time of the application
  • Both parties have lived apart from each other for one year up to the time of the application, and they agree to the granting of the decree.
  • Both parties have lived apart from each other for at least three years at the time of the application. It is not necessary, in this instance, for both parties to agree to the decree being granted.
  • Where it is determined by the court that a normal marital relationship has not existed between the spouses for at least one year before the date of the application.

The ground most commonly relied upon where a decree is granted is the final ground, as neither party has to be shown as being at fault.

012. Divorce