Separation Agreements Dublin

There are two critical factors for a divorce in Ireland that must be addressed. The first is the living apart and the second is the proper financial provision.

The key elements to obtaining a divorce in Ireland are:

The parties must have lived apart for the requisite time period.
There must be no reasonable prospect of a reconciliation.
Proper (financial) provision must exist or be put in place for the spouses and any dependent children.

In order to ensure that proper financial provision exists or is made by the court the legislation provides a menu of Ancillary Financial Relief Orders that a court can make including periodic Maintenance, Lump Sum Orders, Property Adjustment Orders, Orders in relation to the Family Home (Sale or Occupation of it) Financial Compensation Orders, Pension Adjustment Orders and Orders in relation to Inheritance Rights.

There is a list of statutory factors that the court must take into account in deciding what provision should be made for the spouses in each individual case. These include the financial circumstances of the parties, their financial obligations, and resources and earning capacity, the length of the marriage, the standard of living enjoyed by the couple, their accommodation needs, their ages and health, the degree to which the duties of family prejudiced their career and earning capacity, etc.

If the time frame for a Divorce is not met, formally Separating is the first option and there are various methods of formalising Separation Agreements in Ireland in a legal context.

Mediation, Negotiations and Collaborative approaches

One option is to resolve matters by means of a negotiated memorandum of understanding agreed between you with the assistance of a mediator, which would lead to the resolution of all matters pertaining to issues such as property, maintenance, and succession rights which is then used to apply for a Court Order on a consent basis.

You can attend mediation with your spouse and a qualified mediator and you can continue to do so while seeking legal advice in between these sessions. The mediator will meet with you both for a number of meetings and discuss proposals towards a resolution of matters. You should not sign the memorandum of understanding or any document without first obtaining legal advice. This Agreement is then not binding until it is drawn up legally into an Agreement and signed by you both.

Alternatively through correspondence or meetings with your spouse’s legal advisors negotiations towards an Agreement can be concluded between legal advisors. Both of you should make full disclosure of your financial circumstances before entering into any negotiations or agreeing with any terms of an Agreement.

Another option is to conduct negotiations through a collaborative law approach where negotiations take place through a series of “four-way” settlement meetings, which both you, your spouse, and lawyers attend. If either party decides later to proceed to Court then the collaborative process ends and both collaborative lawyers are disqualified for the process and can no longer act in the Court proceedings.

Our estimated fee for an Agreement achieved through negotiations varies upon the work required to secure that Agreement. An application would then have to be issued in Court to obtain the Order for Judicial Separation if you wished to obtain Court Orders and in particular Pension Adjustment Orders. Alternatively matters if agreed can be finalised into a Separation Agreement.

An application for Judicial Separation Agreements in Ireland must be based on one of the following six grounds:

• One party has committed adultery
• One party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them
• One party has deserted the other for at least one year at the time of the application
• The parties have lived apart from one another for one year up to the time of the application and both parties agree to the decree being granted
• The parties have lived apart from one another for at least three years at the time of the application for the decree (whether or not both parties agree to the decree being granted) Note – the Family Law Act 2019 amends the Judicial Separation and Family Law Reform Act 1989 to change the number of years the couple must be living apart from one another from 3 years to 1 year before the application for judicial separation can be made.
• The court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of the application for the decree.

The last is by far the most common ground on which the decree is granted, as neither party has to be shown as being at fault. A Judicial Separation Order does not leave either of you free to re-marry but rather governs how you will live apart.

Once Court proceedings issue each party must disclose their means (i.e. income, assets, debts, expenditure, etc.) and this statement of means must be backed up by way of vouching documentation. The Court also has wide powers to order disclosure or discovery of documentation if appropriate and these issues and the matters in dispute are assessed through a series of case progression hearings with the Court Registrar.

In addition, the Court has power at the outset to make a wide range of Orders for interim reliefs in relation to matters such as maintenance, access, and domestic violence and if the circumstances require such emergency relief can be sought.

At this stage, it is important to point out that just because of the Court proceedings issue, this does not mean that the matter must run to a full hearing. Quite often cases are settled and the terms then ruled before a Judge on consent.

However whether on settlement terms or a full hearing before the court will make an Order for judicial separation, the Judge must be satisfied that:

• The grounds for the application exist.
• The couple has been advised about counseling and mediation.
• Proper provision has been made for the welfare of any dependants
• If it is satisfied, the court will grant a Decree of Judicial Separation.

The Decree confirms that the couple is no longer obliged to live together as a married couple.

As part of the Order for Judicial Separation the power to make a wide range of orders in relation to custody and access to children, the payment of maintenance and lump sums, the transfer of property, the division of assets, the extinguishment of succession rights, as well as other matters.

Certain matters can only be varied by having recourse to the Courts such as pensions and for this reason, even if matters can be agreed through negotiations those terms can be ruled on consent in Court in order to obtain a Court Order rather than in a Separation Agreement if the parties prefer. You cannot enter into a Separation Agreement and apply through the Courts for relief by way of an Order for Judicial Separation, both processes are distinct remedies.

As you will appreciate from the foregoing explanation regarding matters, if your case can be settled without protracted correspondence and negotiations the fee will be considerably less than if your case proceeds to a court hearing or is settled only shortly in advance of a court hearing date. Indeed we can see if agreement can be reached before proceedings are issued and then proceedings are issued in contemplation of the settlement reached and a hearing date obtained to rule the settlement terms on consent.

Even on a consent ruling, the Court must independently satisfy itself that the marriage is at an end and in relation to all of the matters as set out above.

If matters cannot be agreed upon by negotiations, there will be no option but to proceed with the court proceedings and progress the case to have the matter heard by a Judge to determine issues. If the case resolves and an Agreement is reached a consent date can be applied for during the Case Progression process or through the Office and the Court can be asked to approve the Agreement reached and a request made to grant the judicial separation order.

If an agreement cannot be reached and/or if there is a risk that assets will be put beyond your reach, in order to protect your rights in this matter we would have to recommend the issuing of Court proceedings. In such circumstances, we generally try to set the matter down for trial as early as is, if these circumstances arise. Carmody Moran Solicitors will always advocate in your best interests and will advise you as to what is the most practical and cost-efficient means of protecting your position and achieving your aims, we understand that Family law requires tact and ease that only experience and expert advice can bring to difficult situations.

The likely impact of the Family Law Act 2019 on Separation

The main provision of this Act is to reduce the living apart period to two years out of the previous three.

At the time of writing this Act is in its infancy but it does seem likely that parties will be increasingly likely to talk about divorce immediately rather than focusing on Court Ordered Judicial Separation. It might be that if emergency relief is required, that a standalone application under the 1976 Maintenance Act or the Guardianship of Infants Act 1964 could be commenced rather than making a full application for judicial separation or that Separation Agreements will become more commonplace as a stepping stone towards an application for Divorce once the requisite time period has expired.

But in other cases where the protection of the court is required, an application for judicial separation may be required or be commenced which can in due course be superseded and effectively converted to an application for divorce after the two year period has elapsed if the separation proceedings have not been concluded by then.

In the long term, however, applicants should not need to apply to the Court twice (i.e., separation and then divorce). This will hopefully make the court process speedier and more cost-effective for applicants. It should be less costly again to applicants who can reach an agreement of all or a number of matters in advance of a single application for divorce

This is not an easy one, there can be much to consider, and the best advice is to get real advice guided towards your specific situation from an expert family law solicitor. You may also wish to think about additional personal support too, as separation can be like bereavement, it is a loss, including to the person initiating the separation.

At Carmody Moran Solicitors LLP our expert legal advisors can give you that initial guidance and even if the separation does not advance at all or does not become a dispute, you can make decisions with the piece of mind of that additional knowledge and support.

We offer an initial one-off ask the expert consultation in family law matters for a fee of €200 plus vat being €242.

1. Gather and keep records, keep a diary
2. Keep a folder with your financial correspondence as it issues
3. Review your finances and consider creating a monthly budget.
4. List Property & Other Assets.
5. Contact a Family Solicitor / Divorce Lawyer.
6. Get advice on alternative methods of dispute resolution and mediation.
7. Consider changing your passwords to email and online accounts
8. Take steps to protect any joint savings from being dissipated
9. Consider a joint approach with your spouse as to what to tell or not tell any children. Do some background reading appropriate to the age of your children that may help both you and your spouse navigate this time.

Take advice and assistance where you can, for instance consider reaching out for some additional personal support, we frequently advise our clients to consider counselling or coaching to help them as they navigate this difficult time.

At Carmody Moran Solicitors LLP we know from experience that this can be a daunting process.  Early legal advice is key, it can help you get on the right track and answer your pressing questions and give you some initial guidance to put your mind at ease. 

It is advisable:

1. Not to go on line letting off steam.
2. Go slow with texts and emails, they may end up being read by third parties, save a draft and review it with a fresh head in the morning.
3. Do keep it private.
4. Do consider obtaining early legal advice.
5. It is generally not advisable to move out of a family home unless your physicial safety or mental welfare is in danger.
6. Consider reaching out for some additional personal support, we frequently advise our clients to consider counselling or coaching to help them as they navigate this difficult time.