If you are wondering how to separate or how to divorce you may be interested to know the following:

In the case of both separation and divorce, the law allows for spouses to agree all aspects of a marriage breakdown. These may include such matters as custody of and access to children, financial issues, including maintenance and issues relating to pensions as well as the family home.

While separation differs from divorce in many ways, the main difference is that separated couples are still legally married and therefore neither party can remarry.

A divorce allows either party to remarry. In order to get a divorce in Ireland, the spouses must be (a) living separate and apart for at least four of the previous five years, (b) there must be no prospect of reconciliation and (c) there must be arrangements in place for the maintenance and welfare of the two

How To Separate by Deed of Separation:

If a couple can agree on the terms on which they will separate it is possible to deal with the breakdown of their relationship by means of a document known as a deed of separation/separation agreement. The content of a deed of separation is usually negotiated and drafted by the couple’s solicitors in accordance with their respective client’s instructions. Alternatively, the terms of the separation agreement can also be agreed either through a mediation process or through a collaborative family law process.The deed of separation is then signed by the husband and wife. Once the separation agreement is signed, it becomes a legally binding contract setting out each party’s rights

In general terms the main issues dealt with in a separation agreement are as follows:

Maintenance to be paid by one spouse to a dependent spouse. The agreement facilitates the implementation of whatever terms the parties agree in relation to Property matters, such as the sale of the family home and the distribution of the sale. Both parties usually renounce/give up their Inheritance/Succession rights, under the  Succession Act 1965, to a share in the estate of the other.

It is not possible to deal with a claim to be entitled to a share of  your spouses Pension fund in a separation agreement. This can only be done by obtaining a court order called a Pension Access, Guardianship and Custody of Children of children under eighteen years of age.  There is usually a clause inserted in the separation agreement that has the effect of indemnifying both spouses from all future debts which are incurred by either of them.

How To Separate by Judicial Separation:

If it is not possible for the parties to agree the terms of their separation it is often necessary to make an application to the courts for a Decree of Judicial Separation. This application can be made by either party. This is a time consuming process and it could take two years before your case is ready for a full hearing.

There may be many interim applications that have to be made along the way and there will be a need to exchange full financial documentation so that both sides know exactly what the other persons financial affairs are like. Ultimately if the case goes as far as a full hearing the Judge will decide the terms on which the parties will separate and the Judge will make relevant orders on matters such as property, custody, access and maintenance and pensions.

The court must also be be satisfied that:

  • The parties have met the appropriate statutory criteria to be entitled to bring the application.
  • The parties have had an opportunity to be legally advised and that they have been advised of the possibility of resolving their differences through either counselling or mediation.
  • Appropriate provision has been made for all parties including any dependent children.

Once all of these matters are decided, the court will grant a Decree of Judicial Separation. The granting of the Decree of Judicial Separation formalises the fact that the couple is no longer obliged to live together as a married couple.

The application for a Judicial Separation is most usually made in the Circuit Court, and can be made either in the Circuit Court area where either of the parties lives or carries on a business. An application can sometimes be made in the High Court. As in all family law matters, cases are heard in private and the public is not admitted to the courtroom.

  • A Judicial Separation application is usually based on one of the following:
    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.
  • Either of the parties has committed an act of adultery
  • Either party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with him/her
  • Either party has deserted the other for at least one year at the time of the application

The court has the authority to make orders for ancillary reliefs in respect of the various issues that are being contested. These are usually some or all of the following; maintenance, pensions, property, financial compensation orders or succession rights, custody and access. The court must take into account a number of factors when it is considering making any such ancillary orders. These include

The actual and potential financial resources i.e. the income, earning capacity, property and
other financial resources which each of the spouses concerned has or is likely to have in the
The financial needs, obligations and responsibilities which each of the spouses has or is likely
to have in the foreseeable future (whether in the case of remarriage or otherwise)
The standard of living enjoyed by the family before the proceedings were commenced or
before the spouses separated.
Each party’s age and the length of time the spouses have lived together.
Any physical or mental disability of either of the spouses.
The contributions which each of the spouses has made or is likely to make in the foreseeable
future to the welfare of the family.
Any income or benefits to which each of the spouses is entitled under statute.
The conduct of each of the spouses.

The accommodation needs of either spouse.

If you want to make an application for a Divorce from your spouse you have to satisfy the following
criteria before you can do so. You must have
lived separate and apart from your spouse for four of the five years prior to you commencing the
If you meet that specific criteria you can then commence the process of having divorce proceedings
issued. In order to do this a number of documents will have to be completed and lodged with the
Circuit Court office in the area you live in or are bringing the proceedings in. Those documents
An application form (known as a Family Law Civil Bill). This document describes the
spouses, their occupations and where they live. It also sets out when they were married, for
how long they had been living apart and the names and birth dates of their children. It also
sets out a clear statement of what it is that the person who is bringing the case, called the
applicant, says was the cause of the breakdown and sets out in detail the claim that they
propose to make against their spouse and what relief or orders they are asking the court to
make. it is necessary to attach a copy of your state marriage certificate.

An Affidavit of means.  This is a statement setting out your assets and liabilities and your
An Affidavit of Welfare. This is another statement which relates to the welfare of the
children. This document sets out the details of the children of the marriage, gives general
details about where and with whom they live as well as also describing other important
issues such as their education and training, their health and childcare, maintenance and
When all of the necessary documents have been lodged in court, the applicant apply to court for a date
for the court hearing. This may take some time to come around and there may be a number of
procedural applications that need to be dealt with as the case progresses. There will also be the need
for a number of case management hearings where procedural issues such as the disclosure / discovery
of financial documentation will be dealt with. When the County Registrar  is satisfied that the case is
ready for hearing a court hearing date will be allocated. Once the hearing date is set, both parties and
their representatives, including barristers, will attend at the Court. There is never any certainty that the
case will actually be dealt with on the hearing date as there may be many cases listed for the same
day. It is often the case that the matter will get adjourned on a few occasions before it actually gets
heard.  The hearing will eventually be held in private. The applicant will need to show the court that
they meet the requirements of the Family Law (Divorce) Act 1996, referred to above such as there is
no reasonable prospect of a reconciliation between the parties .The Court also has to be satisfied that
such provision as the court considers proper having regard to the circumstances that exist or will be
made for the spouses and any dependant members of the family.

 

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