Separation

Your individual circumstances should determine what type of Agreement you choose…

There are two ways of formalising a separation between spouses – a Separation Agreement or a Decree of Judicial Separation. The process that a couple chooses depends on their individual circumstances.

Separation Agreement/Deed of Separation

If a couple can agree the terms of their separation either voluntarily (by the couple themselves or through mediation) or through a solicitor, they can opt for a Deed of Separation.

A Deed of Separation is really a legal written contract between both parties to the marriage, setting out your future rights and duties to each other.

The document is signed by both spouses in duplicate and witnessed.

The Separation Agreement becomes a legal contract at the time specified in the Deed of Separation.

The success of this process depends on you both agreeing to all of its terms.

Neither party may insist on or demand any rights (as this is a process of negotiation and all terms within the Deed must be agreed by both spouses), although the parties and/or their solicitors can continue to negotiate until agreement is reached.

Judicial Separation

In cases where spouses cannot agree to the terms of a Separation Agreement, Judicial Separation can be granted by the courts, if one of the following six grounds apply:

1. One spouse committed adultery
2. One spouse has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with that spouse
3. One spouse has deserted the other for a continuous period of at least one year at the time of the application for the separation
4. The spouses have lived apart from each other for at least one year immediately preceding the time of the application for separation, and both spouses agree to the separation decree being granted.
5. The spouses have lived apart from one another for a continuous period of at least three years up to the time of application for a separation (whether or not the spouses agree to the separation).
6. The court considers that a normal marital relationship has not existed between the spouses for at least one year immediately before the date of application for separation.

Where there are dependant children, the Decree of Judicial Separation must be accompanied by an Order regulating the arrangements for the welfare of the dependant children.

In granting a decree of Judicial Separation and making ancillary orders in respect of financial matters a judge may take a number of factors into account.

These factors include:

• The current income and assets and the likely income of each spouse in the future
• The current financial obligations of each spouse and future financial obligations they may have
• The standard of living of the family before the breakdown of the marriage
• The ages of each spouse, the length of the marriage and the length of time the couple lived together
• The accommodation needs of each spouse
• The degree to which the marriage affected each spouse’s ability to earn
• The conduct of each of the spouses
• The input each spouse has made and is likely to make to the welfare of the family
• Any benefits a spouse has to give up because of the separation.

Cases concerning Judicial Separations are heard by the Circuit or High Court.

As in all family law matters, cases are heard in private.

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