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:
- a divorce allows both parties to remarry, while judicial separation does not
- 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.
Adultery is a ground for judicial separation and while it can be difficult to prove, it can be inferred from the circumstances.
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.
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
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