Judicial Separation-The Grounds for Judicial Separation and the Difference from Divorce

There are now two ways to legally end a marriage in Ireland-divorce and judicial separation. The Judicial Separation and Family Law Reform Act 1989 gives the Court wide discretion to make orders in relation to the granting of a decree of judicial separation.

One significant difference between divorce and judicial separation in Ireland is the element of “fault”-there is no requirement to show fault on behalf of one of the parties in a divorce decree but there may be such a requirement to obtain a decree of judicial separation, depending on which of the 6 grounds you choose.

Other differences between divorce and judicial separation are:

  1.  a divorce allows both parties to remarry, while judicial separation does not
  2. the arrangements between the parties in a judicial separation may be reviewed and changed when a Judge is being asked to grant a divorce.

The grounds for judicial separation

The Judicial Separation and Family Law Reform Act 1989 provides 6 grounds for the granting of judicial separation by either the Circuit Court or High Court.

1.  Adultery

Adultery is a ground for judicial separation and while it can be difficult to prove, it can be inferred from the circumstances.

2.  Behaviour

The behaviour of one of the parties which renders it impossible for the other party to live with the offending party is also a ground. Physical and mental cruelty provides the basis of this reason for judicial separation.

3.  Desertion

Desertion by one of the parties is another ground but it must be for a period of at least one year and continuous. Constructive desertion, where one party deserts because of the bad behaviour of the other party, is included in this ground for a decree.

4.  The parties agree and have lived apart for at least 1 year

The living apart must be continuous and the reasons for doing so are irrelevant provided both parties agree to judicial separation.

5.  Normal marital relationship has not existed for at least 1 year

Where a normal marital relationship has not existed for at least 1 year and regardless of the presence of fault, a Court may grant a decree under this heading. There is no definition of what a ‘normal marital relationship’ in the legislation.

Nevertheless, this is the most common basis for the grant of a decree of judicial separation.

6.  The parties have lived apart for at least 3 years

Under this ground there is no need to show fault-this is a useful ground where there is no fault and the other party will not consent.

Note: the advantage of applying for a decree of judicial separation on the grounds of adultery or cruelty (numbers 1 and 2 above) is the applicant spouse does not have to wait 1 year to issue proceedings.

Welfare of children in Judicial Separation

Once one of the six grounds for judicial separation outlined above is proven on the balance of probabilities a court will grant a decree of judicial separation PROVIDED the welfare of any dependent children of the marriage has been provided for.

A dependent child is a child who has not reached the age of 18 or the age of 23 if in full time education.

Welfare is concerned with the religious, moral, intellectual, social and physical welfare of the dependent child.

3.—(1) Where, on an application under section 2 of this Act, the court is satisfied that any of the grounds referred to in subsection (1) of that section which have been relied on by the applicant have been proved on the balance of probabilities, the court shall, subject to subsection (2) of this section and sections 5 and 6 of this Act, grant a decree of judicial separation in respect of the spouses concerned.

(2) (a) Where there are, in respect of the spouses concerned, any dependent children of the family, the court shall not grant a decree of judicial separation unless the court—

(i) is satisfied that such provision has been made, or

(ii) intends by order upon the granting of the decree to make such provision,

for the welfare of those children as is proper in the circumstances.

(b) In this subsection—

“dependent children of the family” has the same meaning as it has for the purposes of Part II of this Act;

“welfare” comprises the religious and moral, intellectual, physical and social welfare of the children concerned.

(3) Upon the granting of a decree of judicial separation by the court, the court may, where appropriate, by order give such directions under section 11 of the Guardianship of Infants Act, 1964 , as it thinks proper regarding the welfare or custody of, or right of access to, an infant (being an infant within the meaning of that Act) as if an application had been made under that section.

Source: Section 3, Judicial Separation and Family Law Reform Act, 1989

Solicitors obligations

A solicitor involved in  judicial separation proceedings is obliged by law to discuss with his/her client the possibility of reconciliation and mediation and negotiation of a separation agreement satisfactory to both parties.

If the Court is satisfied that all of this has occurred it may grant a decree of judicial separation and once this is done the court may make further ancillary relief orders which we look at elsewhere on this site.

Judicial Separation and Separation Agreements

Separation agreements drawn up and agreed between parties and Judicial Separation are very different animals with one significant factor that you must be aware of..

Since a decision of the Supreme Court in 1998 in P.O’D v A.O’D a separation agreement agreed between 2 parties is a bar to the subsequent obtaining of a Judicial separation.

The hugely significant factor in this decision is that without a Judicial separation  you are not entitled to look for any of the large range of property and financial reliefs under the Family Law Act, 1995.

The reason for this is that the Supreme Court held that it would not be right to go behind the separation agreement freely entered into by two consenting adults by one of the parties seeking a Judicial separation which would have the effect of tearing up the separation negotiated and entered into freely by both parties.

However a separation agreement cannot act as an impediment to seeking relief in maintenance proceedings under the Family Law Act 1976 (Maintenance of Spouses and Children) nor can it prevent divorce proceedings from being instituted.

However any subsequent divorce proceedings will be heavily influenced by the separation agreement entered into by the parties.

The influence of the separation agreement will depend on

  • The circumstances surrounding the agreement

  • When the agreement was negotiated and executed.

By Terry Gorry
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Separation Agreements in Family Law in Ireland-The Facts You Should Know

Separation agreements in family law in Ireland are agreements drawn up by the parties to a broken down marriage who wish to avoid the Courts to resolve their differences.

Terms of separation agreements

Most separation agreements will deal with an agreement for the parties to live apart and further matters commonly covered will include access to children if any, maintenance, custody, division of property and any other relevant matters that the parties wish to commit to writing.

The agreement to live apart should contain a date when this will commence as this date will be important if either party wishes subsequently to obtain a divorce.

Non molestation

A common clause in separation agreements is a “non-molestation clause” which simply prevents the disturbance or annoyance of one party by the other after execution of the agreement.

Custody and guardianship

The issues of access and custody where there are children under 18 are important matters to cover and agreement may have been agreed between the parties about sole or joint custody.

Matters in this section may also deal with bringing a child abroad and out of the jurisdiction and detailed arrangements for access.

Remember that even where parties separate both married parents remain joint guardians of children under 18.

Property

Matrimonial property is obviously a big issue to be dealt with in separation agreements. Common situations include one of the parties staying in the family home, perhaps until children reach the age of 18, and then the home being sold and proceeds split.

An alternative is for one party to buy out the other party’s interest in the property and become the sole owner on payment of an agreed lump sum.

Maintenance

A separation agreement should make provision for the payment of maintenance by one spouse to another and this will normally be the subject of extensive negotiations.

The existence of agreement in relation to maintenance does not prevent a spouse from going to the District court to seek a maintenance order under the Family law act, 1976. However the Court will consider the existence of the separation agreement terms which deal with maintenance in any order it might make.

Other matters that might be considered for inclusion in any separation agreement include

  • Taxation-the receipt of maintenance by the custodial parent is taxable so the question of election to be taxed as a single person or jointly might be considered. The receipt of maintenance designated for the support of children is not taxable though.

  • Succession rights-the parties may renounce their succession rights to their share of the estate of the other party under the Succession Act 1965

  • Pensions-pensions in a separation agreement can be a complex issue and you would be well advised to take taxation advice if the pension is substantial

  • An indemnity-most agreements will have a clause which indemnifies each party against any debts subsequently incurred by each party.

The separation agreement can be made a rule of Court-the advantage of this is that any failure to uphold the agreement can be remedied by going into Court for a contempt of Court ruling. In addition any maintenance payments can be made through the District Court clerk which will afford a greater degree of security when it comes to enforcing any failure to pay.

Separation Agreements and Future Legal Proceedings

As a separation agreement is a binding contract, subsequent judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 are not possible.

This means that a spouse is precluded from seeking the extensive range of financial and property reliefs available under the Family Law Act, 1995. A pension adjustment order is also out of the question as this is granted under the Family Law Act, 1995.

Separation Agreements and Divorce Proceedings

However a separation agreement is not a bar to subsequent divorce proceedings under the Family Law  (Divorce) Act 1996 and in deciding upon divorce proceedings the Court will have to “have regard” for the terms of any separation agreement.

The difficulty can arise though where divorce proceedings are brought some time after the separation agreement has been entered into and the financial fortunes of either or both parties have changed significantly.

In K v K [2003] High Court decided that the Court had to decide what was “proper provision” at the date of divorce, not the date of the separation agreement and this can lead to a significant redistribution of the assets.

In circumstances where the separation agreement precedes the divorce proceedings fairly recently in time then there probably will not be any reason for a significant departure from the provisions of the separation agreement (unless of course there has been a material change in financial circumstances of the parties).

In M.P. v A.P. 2005 High Court the Court held that the weight to be placed on a Judicial Separation Consent Agreement in divorce proceedings will depend on

  1. The length of time since agreement was reached;

  2. The financial background pertaining to the Consent Agreement;

  3. The reasonable expectation of the parties.

If your marriage has broken down you should consult a solicitor who will explain the various options open to you and any pitfalls to avoid.

Full and Final Settlement in Separation Agreements

Does a ‘full and final settlement’ in a deed of separation or on Consent Terms in a judicial separation actually mean what it says? In other words, can either party get a ‘second bit of the cherry’ at the time of divorce?

Firstly, the Courts are obliged under section 20(3) of the Family Law (Divorce) Act, 1996 to ‘have regard’ for any separation agreement entered into:

(3) In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force.

However, this does not prevent Courts from making further additional provision to ensure ‘proper provision’ for spouses and dependent children as has been seen in various decided cases and the Supreme Court has found that Courts have ‘very broad discretion’ in these cases.

Section 14 of the Family Law (Divorce) Act, 1996 allows for property adjustment orders to set aside the terms of previous agreements to ensure proper provision at the time of divorce.

Courts have been seen to vary in what weight they attach to previous agreements but the following general points can be made:

  1. Courts will have regard to prior agreements and the circumstances of that time;

  2. Courts’ ability to make proper provision for spouses and dependent children cannot be ousted by a deed of separation or consent terms in judicial separation;

  3. The court will consider the financial resources of both parties at the time of divorce;

  4. More recent settlements will have greater weight than older ones as the circumstances of both parties are less likely to have significantly changed;

  5. A full and final settlement reached at the time of divorce will have greater weight than one reached on judicial separation;

  6. Courts may be less likely to intervene where generous provision was made for the less wealthy spouse in a prior settlement;

  7. Prior settlements are more likely to be revisited where proper disclosure was not made at the time

  8. The source of assets of the marriage, for example inherited assets introduced by one spouse to the marriage, will carry some weight.

All of these cases tend to be decided on the particular circumstances of each case so hard and fast guidelines or rules are difficult to arrive at.


By Terry Gorry
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