A separation is a legal recognition of the irretrievable breakdown of a marriage and it can be secured either by agreement or by order of the court. It differs from divorce because the marriage is not dissolved and the parties remain each other’s spouses, and are not free to re-marry.
When a couple decides to separate it does not necessarily mean that they must rely upon the courts for a resolution.
A couple may enter into a Separation Agreement or a Deed of Separation. This means that the husband and wife agree to live separate and apart from each other and they also agree on all other aspects of their separation including the financial and living arrangements regarding their dependent children, their broader financial arrangements including maintenance, their family home, pensions, succession rights and all other matters.
A separation agreement is essentially an agreement on all aspects arising from the relationship breakdown. It is a legally binding agreement which sets out the duties and obligations of the husband and the wife.
If a couple can formalise their separation in this manner it typically involves less conflict and avoids the necessity to seek the direction of the courts. The terms of a separation agreement can be reached either through collaborative practice, mediation and/or negotiation through solicitors.
Once a Deed of Separation is signed by both husband and wife, they are then precluded from bringing judicial separation proceedings.
The actual agreement when it is drawn up and signed by both a husband and wife is often called a ‘Deed of Separation’. When the agreement is signed, it can be made a rule of court by application to the court. This ensures that all the terms agreed upon can be enforced with the support of the courts, should either party fail to comply with the terms as agreed. To make the terms of agreement an order of court, the parties typically seek the assistance of their respective solicitors.
If a couple cannot agree the terms of their separation but wish to formalise a separation, proceedings can be issued for a decree of judicial separation by one of the spouses. A judicial separation is an order from the courts, confirming that the parties are legally separated and it must be supported by the necessary parenting and financial orders to ensure that proper provision is made for all parties. A spouse can seek an order of judicial separation on one or more of the six grounds identified under law. The grounds relied upon must have been proven to the satisfaction of the court.
The Grounds Are As Follows:
- Adultery by the respondent (non-applicant) spouse.
- The respondent spouse has behaved in such a way that it would be unreasonable to expect the applicant spouse to continue to live with him/her.
- The respondent spouse has deserted the applicant spouse for a continuous period of at least one year at the time of the application.
- The couple has 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).
- The couple has lived apart from one another for a continuous period of at least one year up to the time of the application and both parties agree to the decree being granted.
- 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.
Before granting a judicial separation, the Court must also be satisfied that both the husband and wife have been advised about the possibility of resolving their difficulties through counselling and/or mediation and/or the execution of a separation agreement. A spouse cannot apply for a judicial separation where there is a binding separation agreement already in place. On granting a judicial separation the court must be satisfied that there is proper provision for the couple and their dependent children.
Additional orders can be made by the court, including orders relating to custody and access, maintenance and payment of a lump sum, the transfer of property and pension rights and the extinguishment of inheritance or succession rights. Where immediate financial support is required by one spouse, the court can hear an interim application once proceedings have issued and orders including interim maintenance can be made to last up to the full hearing of the judicial separation application.
The Family Mediation Service (FMS) is the state funded mediation service, which can be availed of free of charge. Family Mediation Services are located nationwide with full time offices operating in Dublin, Cork, Galway and Limerick; and part-time offices operating in Donegal, Kerry, Laois, Louth, Mayo, Sligo, Waterford, Westmeath and Wexford. People wishing to avail of the service can call the office most convenient to them and ask for an appointment.
Additionally as a result of the Courts Service and Family Mediation Service Initiative, there is a mediation service available through some Family Courts. Check with your local family court office to see if mediation is available through that court office. Click here for telephone numbers of your local family court office.
Mediation services can also be accessed through the services of a private mediator. The Mediators Institute of Ireland, the Law Society of Ireland and the Bar Council of Ireland keep a list of mediators trained in family mediation, see below links for further information.
- The Legal Aid Board has produced a useful overview of the process of separation including information on counseling and mediation services; an explanation of separation agreements, judicial separation and divorce, and details relating to the orders that might be made by the court, including short term relief pending the resolution of the case.
- FLAC has also produced a comprehensive information leaflet on separation. This leaflet sets out the difference between a separation agreement and a judicial separation and also includes information on the options available to support the negotiation of an agreement either by mediation or collaborative law.
- TUSLA, the Child and Family Agency, with the support of Barnardos, have created a number of very useful leaflets for parents and children on how to cope with a separation:
- Coping with Separation (For Parents): This is a very useful tool for any parent who has separated from their spouse to help them understand the needs of their children before, during and after separation. This leaflet aims to assist parents in dealing with children from the ages of 6-12 years.
- Coping with Separation (For Children aged 6-12): This leaflet aims to inform and assist children aged 6-12 where their parents are in the process of separating.
- Coping with Separation (For Teenagers): This leaflet aims to inform and assist teenagers where their parents are in the process of separating
The Legal Aid Board
- Address: The Legal Aid Board, Quay Street, Caherciveen, Kerry.
- Tel:+353 (0)66 947 1000 Locall: 1890 615 200
- Website: www.legalaidboard.ie
- Email: email@example.com
Free Legal Advice Centres
- Address: , 13 Lower Dorset Street, Dublin 1.
- Tel:+353 (0)1 8745690 Fax:+353 (0)1 8745320
- Website: www.flac.ie
- Email: firstname.lastname@example.org
Family Mediation Service
- Address: Family Mediation Service, 1st Floor, St. Stephen’s Green House, Earlsfort Terrace, Dublin 2.
- Tel:+353 (0)1 6344320 Fax:+353 (0)1 6622339
- Website: http://www.legalaidboard.ie/lab/publishing.nsf/Content/Family_Mediation_Service
- Email: email@example.com
Child and Family Agency – Tusla
- Address: Child and Family Agency, Block D, Park Gate Business Centre, Parkgate Street, Dublin, Ireland
- Tel:(01) 635 2854
- Website: http://www.tusla.ie/
- Address: Drop in 260 locations nationwide
- Tel: 0761 07 4000 (Monday to Friday, 9am to 8pm).
- Website: http://www.citizensinformation.ie/en/
Accord Catholic Marriage Counselling Service
AIM Family Services
AIM is a voluntary organisation which offers non-directive counselling, legal information, and a family mediation service to people experiencing marital, relationship and family problems.