Separation

When a marriage breakdown, spouses may decide to separate.  Whilst they can simply agree to live apart, it is more common and in their interest to formalise arrangements and obligations between them.  This can be done by the parties agreeing the terms of a Deed of Separation also known as a Separation Agreement. 

Typically such agreements contain provisions such as:

  • The agreement to live apart

  • Custody and access arrangements for any children of the marriage under the age of 18 years, if any

  • Maintenance of any dependent children

  • Maintenance for one spouse

  • Security for maintenance Ownership of the family home

  • Occupation of the family home

  • Ownership of other assets owned by each party

  • Inheritance rights

  •  Pensions

  • Whether there will be a review if either party applies for a divorce in the future.

Spouses may reach agreement between themselves or avail of Mediation which is where a trained mediator assists has a number of meetings with the parties and discusses options available and tries to assist the parties in reaching an agreement.  If agreement is reached at mediation, the parties then each engage a solicitor to prepare a legally binding Separation Agreement. Once signed, the document becomes legally binding on the parties and they are legally separated. Surprisingly, Separation Agreements do not need to be registered and there is no record of them, bar the document the parties sign in duplicate, with each retaining one part.

 

If the parties choose not to attend Mediation or attend but they fail to reach an agreement, they may still endeavour to resolve their differences by engaging their solicitors to seek to negotiate a Separation Agreement.

 

Whether negotiated directly, at Mediation or through solicitors, before entering negotiations the parties should make full disclosure of their financial circumstances to each other.  This means disclosing (in a sworn document known as an “Affidavit of Means”) details of Assets, Income, Debts and Liabilities, Outgoings and Pensions.  In many cases, the parties will also “vouch” their affidavits of Means i.e. provide supporting documents such as payslips, bank statements, credit card statements, pension benefit statements for a 1-3 year period. Until full disclosure has been made, the spouses, and their respective solicitors, cannot assess the merits of any proposals being made and whether it is fair and reasonable.  If full disclosure is not made, the parties risk any Separation Agreement entered into being re-opened and reviewed in the future by a Court and possibly set aside.

 

Before the spouses enter into a Separation Agreement, it is imperative that each obtains independent legal advice so that each spouse fully understands the nature and meaning of the terms they are signing up to.  If one or other spouse does not have independent legal advice, there is a risk that any Separation Agreement entered into could be reviewed in the future by a Court and possibly the Agreement could be set aside by the Court.

 

Some of the benefits of a Separation Agreement are as follows:

 

  • The parties decide the terms of their agreement themselves rather than a Court imposing a solution upon them

  • The agreement can be far more creative and flexible than Court Orders

  • It can be a relatively speedy process if both parties co-operate

  • It can be far less costly than going to Court

  • It can be less acrimonious than going to Court.

Judicial Separation

If the parties do not wish to negotiate a Separation Agreement or fail to agree the terms of a Separation Agreement, then either can issue Judicial Separation proceedings to the Court.  The spouse who applies to the Court is called the Applicant and the other spouses is called the Respondent.  The Respondent can file a Defence and Counterclaim to the Applicant’s claims, and put his/her own claims before the Court.  

An application can be brought to the Circuit Court (specifically to the Court area where either party ordinarily resides or carries on business) or the High Court. The majority of cases are dealt with by the Circuit Court.  Where the property assets exceed €3m, unless the parties agree otherwise, the proceedings must be brought to the High Court.

 

The Court can grant a Decree of Judicial Separation based on one of 6 grounds set out in the Judicial Separation and Family Law Reform Act, 1989.  The predominant ground the Court relies on, where applicable, is a “no-fault” ground that is: that there has been no normal marital relationship between the parties for at least 12 months prior to the institution of the proceedings.  The parties cannot seek a Decree of Judicial Separation where they have already entered into a Separation Agreement.

 

The Court can make a variety of Orders once it grants a Decree of Judicial Separation.  In making those orders it is obliged to make “proper provision” for the spouses and any dependent children of the parties.  The Orders the Court may make are provided for in the Family Law Act, 1995 and include, for example:

 

  • Custody and access orders relating to children under the age of 18 years of full time dependents

  • Maintenance of dependent children

  • Maintenance for one spouse

  • Orders under the Domestic Violence Act, 2018

  • Transfer or sale of the family home

  • Transfer or sale of other property

  • Declarations as to ownership of property

  • Declarations as to responsibility for debts

  • Orders that a party maintain or put in place a life policy

  • Division of pension benefits

  • Extinguishment of inheritance rights

  • Blocking order prohibiting one or both parties applying to the court after the other party’s death seeking a share out of that deceased spouse’s estate

 

Children are considered legal dependents if they are under the age of 18 years or, having attained the age of 18 years is in a full time third level course of education, up to the maximum age of 23 years.  If a child has a permanent disability they may be considered a dependent child for their lifetime. 

 

Factors the Court must take into account when making Orders are set out in Section 16 of the Family Law Act, 1995 and are as follows:

 

  • the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future

  •  the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise)

  • the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses separated, as the case may be

  • the age of each of the spouses and the length of time during which the spouses lived together

  • any physical or mental disability of either of the spouses

  • the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family

  • the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived together and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family 

  • any income or benefits to which either of the spouses is entitled by or under statute

  • the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it

  • the accommodation needs of either of the spouses

  • the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of judicial separation concerned that spouse will forfeit the opportunity or possibility of acquiring

  • The rights of any person other than the spouses but including a person to whom either spouse is remarried

 

In deciding whether to make an order in favour of a dependent member of the family the court shall, in particular, have regard to the following matters:

 

  • the financial needs of the member,

  • the income, earning capacity (if any), property and other financial resources of the member

  • any physical or mental disability of the member,

  • any income or benefits to which the member is entitled by or under statute,

  • the manner in which the member was being and in which the spouses concerned anticipated that the member would be educated or trained,

  • the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future

  • the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise)

  • the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses separated, as the case may be

  • the accommodation needs of the member.

 

Many spouses engaged in Judicial Separation proceedings resolve those proceedings amicably, before a full hearing.  In such cases, they usually enter into “Terms of Settlement” or “Terms of Consent” which sets out what Court Orders they wish the Court to make.  The Court must be satisfied that the Orders proposed make “proper provision” for the parties and any dependent children before it will grant the Orders.

 

If the parties do not agree matters, a Court hearing will be scheduled and a Judge assigned to hear the parties in evidence, hear any witness and then give its judgment.  

 

Court hearings typically take 18-24 months from the date of issue of court proceedings however, where the parties promptly comply with the Court rules, hearings can take place more quickly.

 

The parties are required under the court rules to make full disclosure to one another of their respective financial circumstances, through the swearing of Affidavits of Means and provision of vouching documentation for a minimum of 1 year prior to the instruction of the proceedings.  Typically such vouching is for longer than one year, as the parties will be required to update it prior to a hearing date.

 

Between the date of the issue of proceedings and the full hearing date, applications can be made for certain Orders including:

 

  • interim maintenance for a spouse and/or dependent child/ren

  • interim custody and access Orders

  • Orders appointing a child expert to interview the parties and the children and to provide recommendations to the Court as to the future care arrangements of the children.  Such assessments often involve eliciting the children’s views also

  • Orders under the Domestic Violence Act 2018, such as Protection Orders or interim Barring Orders

  • Order restraining a spouse from making a disposal of an asset or transfer of an asset outside the jurisdiction or otherwise deal with property if it believes that the spouse is doing so with the intention of defeating the other spouse’s claim for Orders.

  • Orders setting aside disposals of property made by one spouse if to do so would allow the Court grant Orders or different Orders for the other spouse.