In Ireland, there are three ways for a couple to separate legally:
(a) Separation Agreement
If a married couple in Ireland wish to separate, they can agree the terms upon which they wish to live separately and enter into a Separation Agreement.
Bothe parties will usually complete an Affidavit of Means, complete with vouching documentation to ensure there is clarity on the financial circumstances of both parties. The terms of the Separation Agreement will have to be agreed by both parties. The issues that can be dealt with in a Separation Agreement include arrangements in respect of children (custody and access); maintenance payments and division of property including the family home. A Separation Agreement cannot deal with Pensions and the Trustees of Pension Schemes are not bound by the terms of a Separation Agreement. A Separation Agreement is essentially a legally binding contract setting out the parties rights and obligations to the other.
It is important to note that once parties have entered into a Separation Agreement, they are not entitled to issue Court proceedings or a Decree of Judicial Separation. However they can seek a Decree of Divorce.
If you require further information about a Separation Agreement, please do not hesitate to contact Susan Webster here.
(b) Judicial Separation
If parties cannot come to an agreement about a Separation Agreement, then either party can issue Court proceedings to seek a Decree of Judicial Separation. An application for Judicial Separation must be based on one of the following six grounds:
One party has committed adultery.
One party has behaved in such a way that it would be unreasonable to expect the other Spouse to continue to live with him.
One party has deserted the other for at least one year.
The parties have lived apart from one another for one year up to the time of the Application and both parties agree to the Decree being granted.
Prior to making a Decree of judicial Separation, the Court must ensure that proper provision has been or will be made for in respect of any dependent members of the family. The Court will take a number of factors into consideration when making sure that there has been proper provision.
For further information, contact Susan Webster here.
A Decree of Divorce allows parties to remarry or enter into a civil partnership once a divorce has been granted. If a court is satisfied that the required conditions are met, the court will grant the decree of divorce dissolving the marriage. When it grants the decree of divorce, the court may also make orders in relation to custody of children and access to them, the payment of maintenance and lump sums, the transfer of property, the debts and liabilities of the parties, pension rights and the extinguishment of succession rights.
Before a court can grant a divorce, the following conditions must be met:
The parties must have been living apart from one another for a period amounting to four out of the previous five years before the application is made.
There must be no reasonable prospect of reconciliation.
Proper arrangements must have been made or will be made for the spouse and any dependent members of the family such as children of either party and other relatives.
If these conditions are met, either party to a marriage may apply to court for a decree of divorce.
The fact that the parties must have been living separate lives for a number of years before an application for a divorce is made means that many separating couples obtain a separation agreement or a judicial separation to regulate matters between them before they seek a divorce.
In any application for a decree of divorce, the court can review any previous arrangements made by the parties such as a separation agreement, particularly if the circumstances of either party has changed.