Judicial Separation

In Ireland spouses can legally separate from each other in two different ways:

  1. By agreement entering into a Deed of Separation.
  2. By obtaining a Decree of Judicial Separation.

The effect of such a separation, whether by way of separation agreement or by way of court order, is that the spouses are no longer obliged to live together but they remain married to each other.

A separation agreement sets out in writing the arrangements which are to apply when a husband and wife are to live separate and apart. It would normally deal with such matters as custody of the children; access; maintenance; ownership of the family home; pension arrangements; and succession rights. If parties have entered into a deed of separation they cannot subsequently apply to the court for a judicial separation by way of court order although they are entitled once they fulfill the necessary conditions to apply for a decree of divorce.

A spouse can obtain a decree of judicial separation pursuant to the Judicial Separation and Family Law Reform Act 1989 on one of the following grounds:

  • That his or her spouse has committed adultery.
  • That his or her spouse has behaved in such a way that the applicant cannot reasonably be expected to live with him or her.
  • That his or her spouse has deserted for a continuous period of at least one year prior to the application.
  • That the spouses have lived apart for a continuous period of one year prior to the application and his or her spouse consents to the application.
  • That the spouses have lived apart from one another for a continuous period of at least three years preceding the date of the application.
  • That the marriage has broken down to the extent that the court is satisfied that no normal marital relationship has existed between the spouses for a period of at least one year prior to the date of the application.

In practice the final ground, “no normal marital relationship for a year” is by far the most common and the vast majority of judicial separations are granted on this basis. Where there are dependent children the court cannot grant a decree of judicial separation unless proper provision has been made for them. Generally children are dependent until they have reached 23 years of age or have finished in full-time education, whichever is the earlier.

On granting a judicial separation the Court must make proper provision for the spouses and any dependent children. When determining what constitutes proper provision the Court must have regard to all the circumstances but in particular certain factors which are set out in the relevant legislation, the Family Law Act 1995. The main factors which are taken into account are the following:

  • The amount and nature of the assets of the parties.
  • The amount and nature of the income of the parties.
  • The needs of the parties and of their children.
  • The length of the marriage.
  • The contributions which each party has made to the marriage, for example by working either within or outside the home.
  • The standard of living enjoyed by the parties prior to separation.
  • The health of the parties.
  • Any benefits to which either party may be entitled.
  • The conduct of the parties if it would be contrary to justice to ignore such conduct.
  • The rights and interests of third parties.

The court makes proper provision for the spouses and any dependent children by way of ancillary orders, the most important of which are the following:

  • A Periodical Payments Order – this requires a spouse to pay a certain amount per week or per month in respect of the other spouse and/or any dependent children. Children are considered to be dependent until they reach 23 years of age or finish in full-time education, whichever is the earlier.
  • A Secured Periodical Payments Order – this is the same as a periodical payments order except payment is secured against a fund or a property which can be drawn upon or sold if there is default in payment.
  • A Lump Sum Order – This requires a spouse to pay a lump sum or lump sums to the other spouse in respect of himself/herself and/or any dependent children.
  • A Property Adjustment Order – This directs a spouse to transfer a property or properties to the other spouse and/or dependent children.
  • A Pension Adjustment Order – This requires a spouse to transfer all or sum of a pension to the other spouse. The order can cover not only a pension paid after retirement but also a benefit payable in the event of death prior to retirement.
  • A Financial Compensation Order – This requires a spouse to put in place or to maintain in place an insurance policy in favour of the other spouse. This can sometimes be used to ensure that a spouse and/or children are properly provided for in the event of the death of the other spouse.
  • A Custody or Access Order – This is an order directing who is to have custody of the children and what arrangements are to be in place in regard to access to them.
  • An Order in regard to Succession Rights – Following judicial separation the court can direct that the right of one or both spouses to an automatic share in the estate of the other should be extinguished and can also direct whether a spouse should be allowed to seek provision out of the estate of the other.

Subsequent to the grant of a judicial separation the Court has power to vary or discharge continuing orders if there has been a change in circumstances. Judicial Separation proceedings can be heard in the Circuit Court or in the High Court. The vast majority of cases are commenced in the Circuit Court with cases only being taken in the High Court where there are very considerable assets and/or income, which are commonly referred to as “ample resources” cases. Where a case is first determined in the Circuit Court there is a right of appeal to the High Court, where a full rehearing take places. Where a case is first heard in the High Court there is a right of appeal to the Supreme Court but that appeal is determined on the basis of the transcript of the evidence which has been given in the High Court.

In the vast majority of applications for judicial separation there is no international dimension, but where there is the rules in regard to which country should hear the application are set out in an E.U. Regulation No 2201/2003. The basic rule is that the country where the spouses are habitually resident has jurisdiction to hear and determine the judicial separation application. Any such judicial separation which comes within the provisions of the E.U. Regulation is entitled to recognition and enforcement in all other Member States of the European Union, subject to certain limited exceptions.