Legal Separation in Ireland and Divorce in Ireland – It is essential to start actively planning for a future when a marriage or relationship breaks down and it is important to obtain independent family law legal advice as soon as possible to understand your rights to ensure the best possible outcome for you and your children.
It is very common for people to become confused regarding the difference between a legal separation commonly referred to as a deed of separation, a judicial separation and a divorce.
A legal separation is a contract, whereby the married couple can lead separate lives. It outlines the terms of an agreement reached between the parties in relation to custody, access and financial matters. It is an alternative to a judicial separation or a divorce and is more commonly used if the parties do not have grounds to file an application for a judicial separation or a divorce. Whereas, if parties cannot agree their terms of settlement or it is appropriate to, they can apply to the court for a decree of judicial separation.
The purpose of a legal separation agreement is to regulate all matters between the spouses when the marriage breaks down. A divorce will do the same, the key differences are that after a divorce, spouses can remarry, and marital issues are harder to revisit or change.
In terms of a separation, you can either go to court to seek a judicial separation or proceed by way of a separation agreement. The contract will deal with issues like custody, access, living arrangements and financial matters.
In the case of divorce, there is a waiting period required to issue proceedings. On the other hand, a couple can enter a separation agreement at any time after their separation.
At the moment, married couples in Ireland must wait at least two years before they can even apply to the court to initiate divorce proceedings.
It is also important to keep in mind that a legal separation will not change your marital status. You can be living separately but will remain married in the eye of the law until your divorce is finalised.
In broad terms these are:
Separation by Agreement: If both parties are in agreement regarding the terms and conditions of their separation, they can document those terms in a separation agreement, widely known as a deed of separation, which parties sign and are contractually bound by.
Judicial Separation: If both parties are in a disagreement, a court hearing will be required to resolve the issues. Having said that, an agreement can still be reached during the course of the proceedings. In this case, one of the spouses must apply for a judicial separation by filing a family law civil bill document in the circuit/high court to begin the process.
The following are the main steps that a couple should take when entering into a separation agreement.
Both parties must disclose their financial status and assets.
One party needs to draft a Separation Agreement (Deed of Separation) to reflect the terms of their separation concerning child custody, access and financial arrangements.
Once the separation agreement has been approved by both parties, it can be signed and witnessed by their respective solicitors.
One of the spouses will make an application to the court for a hearing to resolve the matter of their separation. This spouse is called the applicant and the other spouse is called the respondent.
1. The applicant applies with the court.
2. The applicant must serve a copy of the civil bill and supporting paperwork submitted to the court on the respondent.
3. Both the applicant and the respondent must confirm that the application was sent and received.
4. The respondent in answer files a defence and counterclaim with the court and gives a copy of the same to the applicant.
5. If there are dependent children, a statement relating to their care and welfare etc. is prepared and provided.
6. Both the applicant and respondent must confirm that they have considered other alternatives to a judicial separation.
7. Both parties need to be transparent about their financial status.
8. If in case an agreement is reached, terms of the agreement reached are drafted and a date is set for the court to hear and rule on the agreement.
9. If there is no agreement a court date is set for a final hearing.
In both scenarios, it is extremely important to obtain expert independent family law legal advice to ensure you know rights and to achieve the best possible outcome for you and your children.
The cost of a separation agreement varies and depends on the circumstances of a case. It is always advisable to contact a solicitor directly to obtain a quote.
The key role of Mediation is to help couples in Ireland, who have decided to legally separate or divorce to come to an agreement concerning decisions about children, finances and the future. A trained mediator will help you negotiate the terms of your agreement while also addressing the needs and interests of all involved. Moreover, this allows you and your partner to make your own decisions rather than having a judge make them for you. It is an effective, cheaper and quicker alternative to court. However, it is advisable for couples who are opting for mediation to make sure they obtain advice from an independent experienced family law solicitor before attending the sessions and during the mediation process so that they know their rights and can make well-informed decisions. On average, it takes up to six to seven sessions for an agreement to be reached.