Family Law | Separation
On this section of our website, we discuss legal separation as part of the road to perhaps obtaining an order for a divorce.
What is the difference between judicial separation and divorce?
The main difference in law between divorce and judicial separation is that a divorce allows the parties to remarry but a judicial separation does not.
Also, the court may review arrangements made in a decree of judicial separation in any application for a decree of divorce, a divorce is generally final.
Family law in Ireland has been journey, as indeed are most marriages and separations. At Carmody Moran we understand that in seeking family law legal advice for a separation or divorce from an expert family lawyer, this is a difficult time of transition in your life and we aim to make the process and straightforward and clear as possible while advocating for your best interests and those of your family, to secure you access to justice in the least stressful and most efficient means possible.
Carmody Moran Solicitors understand that family law is different, and ethical considerations underpin all of our family law practice. We will be upfront with you when there are difficult decisions to make as to what is realistic and achievable for you given our considerable experience adjudicating before the family law courts.
The Family Law Act, 1995 dealt with Judicial Separation and subsequently a 1996 Act dealt with Divorce. Since 1997 there has been significant change in Ireland socially and legally and Ireland went through dramatic liberal changes from the years past. The Civil Partnership and Certain Rights and Obligations of Cohabitants Act in 2010 was a milestone allowing gay and lesbian couples to register their civil partnerships. The successful Marriage Equality Referendum in 2015 allowing gay and lesbian couples to marry was also a significant milestone, and most recently the time frame for Divorce has been reduced by introduction the Family Law Act 2019.
Separation is the first step in a journey generally, but not always, to Divorce. When these dramatic changes first started to occur a significant number of people for religious and other reasons were satisfied to separate and obtain final Orders for a Judicial Separation but did not proceed to a Divorce subsequently.
An application for a judicial separation is made either in the Circuit Court or the High Court. As in all family law matters, cases are heard in private and the public is not admitted to the courtroom.
The Family Law Act 2019 commenced on 1 December 2019. It makes some important changes to the rules for getting a decree of judicial separation in Ireland. The Act 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 a judicial separation can be made.
How do you obtain a Judicial Separation Decree?
When you are applying for a judicial separation you must submit 4 documents to the Circuit Court:
- An application known as a family law civil bill. This inititaing document sometimes called a Writ describes both you and your spouse, your occupations and where you live. It also sets out when you married, for how long you have been living apart and the names and birth dates of your children.
- A sworn statement of means setting out your assets, your income, your debts and liabilities and your outgoings.
- A sworn statement relating to the welfare of your children, if applicable. This document sets out the personal details of the children of the marriage. It describes where they live and with whom. It also describes their education and training, their health, childcare arrangements and maintenance and access arrangements.
- A document certifying that you have been advised of the alternatives to judicial separation and it certifies that you have discussed the options of reconciliation, mediation and separation agreements.
When both you and your spouse have filed all of the necessary documents, gone through the Case Progression hearing, you will then be given a date for a court hearing.
Should I apply for a Judicial Separation or a Divorce?
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 the time frame for a Divorce is not met, formally Separating in the first option and there are various methods of formalising a Separation in a legal context.
Is there another way to separate without going to Court?
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 for 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 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 decide 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 in to a Separation Agreement.
Applying to Court for an Order for Judicial Separation
An application for a Judicial Separation 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 live 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 a 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 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 counselling 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 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 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 Sepearation. 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 applicaton 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 agreement of all or a number of matters in advance of a single application for divorce
If you would like to discuss any of the issues around separation, divorce, or relationship breakdown arising from marital breakdown or cohabiting breakdown, above, please contact us to speak with one of our reassuring family law experts about how we can help by email email@example.com or telephone (01) 8272888.
For further information please feel free to telephone us at 01 827 2888 or use the quick enquiry form.
Your Expert Team
At Carmody Moran Solicitors our experienced family law lawyers are on hand to advise and skilled in handling all nature of divorce.
The two partners of Carmody Moran solicitors have a combined total of in excess of twenty five years professional legal experience. Together with their associates they aim to make the Court process as straight forward and navigable as possible while being on hand to alleviate their clients concerns and worries about going through the Court process.
He has significant experience in personal injury cases and general litigation having handled literally thousands of cases on behalf of clients based in Ireland and abroad.
Niamh manages the family law, conveyancing and probate divisions of the practice. Niamh’s practice of law is extremely varied and she is regularly sought out for her expertise by clients and colleagues alike.