When a couple decides to separate, which may or may not be a step towards getting a divorce, there are two ways of approaching this through the legal system. The first of these is a Judicial Separation, and the second is a Separation Agreement. These are defined as follows:

Judicial Separation

A judicial separation, or a legal separation, is often a step taken prior to a divorce, and removes the obligation for a married couple to live together and operate as a partnership. This is a legal process that can be useful where a marriage has broken down and a couple has not yet been living apart for four years out of the previous five year period, a condition of divorce in Ireland. Where a couple are no longer in a relationship but must continue caring for children and have shared property or assets, for example, a judicial separation can resolve issues such as child access and maintenance, as well as property transfers, during this interim period.

There are six grounds on which an application for judicial separation may be made, and the court will also require that proper provision be made for any dependents, including both spouses and any children involved in the marriage, and that counselling and mediation have been considered. The six grounds are as follows:

  • Adultery
  • Unreasonable behaviour, defined as behaviour that makes it unreasonable to expect the spouse to continue shared living
  • Desertion, where one spouse has deserted the other for at least one year
  • End of marital relationship, where the courts consider that a ‘normal marital relationship’ has not existed between the spouses for at least one year
  • Separate living, where spouses have lived apart from each other for a period of at least one year where both agree to the judicial separation, or for at least three years whether or not both parties agree.

Judicial separation hearings are heard in private, and it is advised that terms are discussed and agreed between spouses wherever possible. These terms are then submitted to the court and the judicial separation granted. Terms can be decided via the courts if spouses are unable to reach agreement.

Separation Agreement

A separation agreement is a legally binding agreement between spouses who have decided to separate, without the need for a court hearing. A separation agreement can be made by a couple themselves or through mediation or a process of negotiation between their legal representatives.

A separation agreement sets out the way in which a couple will legally separate, and addresses issues including financial negotiations, child custody, access, maintenance and shared property. It is important to be aware that applications can be made by either spouse to review agreements such as maintenance payments and those issues that relate to children, at any time and especially if circumstances change.

If a separation agreement has been made, it is not usually possibly to seek a judicial separation, but a divorce can be sought when/if the necessary conditions are met. This includes satisfying the courts that proper provision has been made for all dependents in the marriage, including both spouses and any children, as well as living separately for at least four years out of the past five year period and having no possibility of reconciliation.

If you wish to find out more about separating from your spouse, or you would benefit from a confidential consultation, contact us to talk to a family law solicitor experienced in such matters. We will always prioritise your best interests, and our advice is reliable, professional and affordable, so you can rely on us to get the best outcomes for you.

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