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Publications:  Judicial Separation

 

 

 

Judicial Separation

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An application for a Decree of Judicial Separation is made to the Court in cases where the spouses cannot agree on the terms of their separation, or where only one spouse wants a separation. If such a Decree is made the spouses may no longer live together, and the Court may make any other Orders relevant to the separation on matters on which the spouses cannot agree. The spouse seeking the separation in Court is known as the Applicant. The spouse from whom the separation is sought is known as the Respondent.

Q1: What are the grounds for a Decree of Judicial Separation?

A1: Any one or more of the following:

  1. Adultery committed by the respondent. If the spouses live together for more than 1 year after the applicant became aware of the adultery, then the applicant requires other grounds for a decree in addition to the adultery.
  2. Behaviour on the part of the respondent which makes it unreasonable to expect the applicant to live with that person.
  3. Desertion for a continuous period of 1 year up to the time of the application. Constructive desertion, where one spouse has been forced by the behaviour of the other to leave the family home, is included as a ground under this heading.
  4. The spouses have lived apart for a continuous period of 1 year up to the time of the application and the respondent consents to a judicial separation.
  5. The spouses have lived apart for a continuous period of 3 years up to the time of the application; here the consent of the other spouse is not required.
  6. The court is satisfied that there has not been a normal marital relationship between the spouses for at least 1 year prior to the time of the application.

Q2: Must these periods of desertion or separation have been continuous?

A2: Yes. But if the spouses have lived together during the separation or desertion for a period or periods of not more than 6 months then these periods will affect the continuity. They must be living apart at the time of the application if they are using desertion or separation as a ground for a decree.

Q3: How does a spouse apply for a Decree of Judicial Separation?

A3: Application is made to the Circuit Court or High Court and is usually made through a solicitor as proceedings are complicated.

Q4: What does the solicitor do?

A4: The solicitor will first ascertain that there are grounds to apply for a decree of judicial separation. S/he must then discuss with the client the possibility of reconciliation and must supply names and addresses of persons suitably qualified to assist in reconciliation. If this is ruled out s/he must then discuss the possibility of drawing up a mediated separation agreement and must supply names and addresses of qualified family mediators. S/he must also discuss the possibility of negotiating a written separation agreement. The solicitor must certify to the court that these possibilities have been discussed with the client.

Q5: Can the court put these possibilities to the spouses?

A5: The Court can adjourn any application for a decree before it, to give the spouse's time to consider reconciliation, or, where it considers that reconciliation is not possible, to give the spouses time to consider the terms of a separation agreement. The Court may advise the assistance of a marriage counsellor or a family mediator in these matters.

Q6: Can the discussions with a counsellor or mediator be used as evidence in court?

A6: No.

Q7: When a court grants a Decree of Judicial Separation what additional orders can be made?

A7: Barring and Protection, Custody and Access, Family Home and Property, Maintenance and Lump Sum Payments, Order in relation to Succession Rights, Pension Adjustment Orders.

Q8: If a separation is granted what happens about children?

A8: The Court must be satisfied that any dependent children are properly provided for; otherwise it will make directions regarding their welfare, custody and access to them. Dependent children are children under 18 years of age, or children who will be in full-time education until 23 years of age, or handicapped children.

Q9: What about maintenance payments?

A9: When a judicial separation is granted either spouse may apply at the same hearing for maintenance. The Court may make orders for maintenance of a spouse and children to be paid at fixed periods and/or in lump sums, depending on the future needs of the family. All maintenance payments are made without the deduction of income tax but the maintenance received by one spouse for his/her own support is treated as income for tax purposes whilst maintenance received for children is not taxable in the hand of the custodial parent but is treated as income of the person giving it.

Q10: What happens to the family home?

A10: Either spouse may apply to the Court for a decision on the family home. The court may:

  1. Make an order giving one spouse the right to occupy the home for life or for a fixed period;
  2. order the sale of the family home subject to the conditions it considers proper;
  3. make an Order placing the Family Home in joint names;
  4. make any other relevant orders.

Q11: Has the court power to make orders on other family property?

A11: If required, the Court may make any order regarding property which it considers fitting. The court can order the sale of property, the transfer of property from one spouse to the other or to any dependent children, the making of a settlement by one party for the benefit of the other and/or children and it can vary or extinguish the interest of either of the spouses in a settlement made on them.

Q12: How does the Court decide maintenance payments and property ownership?

A12: The Court takes into account:

  1. the income and property which each spouse has at present and is likely to have in the future;
  2. the financial needs, obligations and liabilities which each has at present and is likely to have in the future;
  3. the standard of living enjoyed by the family up to the time of separation;
  4. the age of each spouse, the length of time they were married and the length of time they lived together.
  5. any physical or mental disability of either spouse;
  6. past and likely future contributions to the welfare of the family by either spouse - this includes caring for the family and the home as well as financial contribution;
  7. the effect of marital responsibilities on the earning capacity of each spouse - in particular the effect on the spouse who gave up career and earning opportunities to care for the family;
  8. income or benefits to which either spouse is legally entitled;
  9. conduct of either spouse which it would be unjust to ignore;
  10. accommodation needs of each spouse and of dependent children of the marriage;
  11. the value to each spouse of any benefit which will be forfeited by either spouse as a result of any judicial separation;
  12. the rights of any third parties affected by the judicial separation including any partners of either of the spouses.

Q13: Can any of these orders be changed at a later date?

A13: Either spouse may apply to the Court to have custody, access, or maintenance orders varied if there is evidence that circumstances have changed. An order for the transfer of property from one spouse to the other can only be made once, unless it is proved that one spouse willfully concealed relevant information when the order was made.

Q14: What happens to succession rights?

A14: If either spouse applies to have the right of the other spouse to his/her estate extinguished the Court may make such an order. However the Court requires to be satisfied that adequate and reasonable provision has been made for the future of the other spouse.

Q15: Can a deserting spouse apply for maintenance or orders on property?

A15: The Court will not make any such orders for a deserting spouse unless it is satisfied that it would be unjust not to do so.

Q16: What happens if an applicant for a judicial separation needs financial help or protection from the other spouse before the case is heard in Court?

A16: The Court may make preliminary orders, if they are applied for, on:

  1. maintenance payments for the applicant and dependent children;
  2. barring or protection;
  3. custody or access;
  4. appointment of child psychologist/psychiatrist to carry out assessment of the family for the Court to determine custody/access;
  5. the protection of the family home or of money from the sale of it;
  6. the protection of household goods or of money from the sale of them.

These orders will be in place until the Court has decided whether or not to make a Decree of Judicial Separation.

Q17: How does the court operate?

A17: The Court proceedings are held in private and are designed to put the applicant and respondent at ease. To help towards an informal atmosphere the Circuit Family Court officials, do not wear gowns or wigs.

Q18: How much is all this likely to cost?

A18: Fees vary considerably, depending on the complexity of the case. for example, fees may have to be paid to professional witnesses. You should discuss the question of costs with your solicitor at the beginning of the case and get a rough estimate.

You may be eligible for legal aid. Civil Legal Aid is available to those who cannot afford a private solicitor. The service is means tested. You can get more information by contacting the Legal Aid Board, St. Stephen's Green House, Earlsfort Terrace, Dublin 2. Tel: 01-661 5811.

Q19: Are there further steps a spouse should take after the separation is granted?

A19: Yes.

  1. Make a will and if there are children appoint a guardian for them.
  2. Ensure that if property is transferred (Q11 above) that your solicitor completes the registration into your name.

Q20: What happens if a couple is reconciled after a decree of judicial separation?

A20: They may apply to the Court to have the order rescinded (set aside) and any other relevant orders will also be rescinded.

 

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