What is a Separation Agreement?

A Separation Agreement is a written document executed by the parties to a marriage, where that marriage has broken down, and where the couple do not wish to employ the Courts to settle the terms of the separation.  

Before a solicitor can assist a party to a marriage in drawing up and executing such a Separation Agreement, a solicitor, pursuant to Sections 5 and 6 of the Judicial Separation and Family Law Reform Act 1989, is under an obligation to discuss with the client:

• the possibility of reconciliation and supply the names and addresses of those persons able to bring about such a reconciliation;
• the possibility of employing mediation to bring about a separation on an agreed basis and supply the names and addresses of those persons who can provide the mediation service; and
• the possibility of effecting a separation by way of a Separation Deed.

The terms of a Separation Agreement invariably deal with the guidance and custody of children; maintenance; property; succession; pensions and so on.  

One should also note that an executed Separation Agreement can be made a Rule of Court provided the Agreement contains a provision relating to maintenance payments. If the Agreement is made a Rule of Court, the person paying the maintenance must pay it through the District Court Clerk therefore the District Court Clerk will remain abreast of any default in the maintenance payments. 

Finally, one very important point to note regarding Separation Agreements is that once you have executed a valid Separation Agreement, you cannot thereafter have go to the Courts in order to obtain a Judicial Separation.   However, a Separation Agreement does not act as a barrier to Divorce Proceedings.

What is a Judicial Separation?

A Judicial Separation is an Order granted by the Courts where the spouses fail to agree the terms of a Separation Agreement, ordering that the spouses are thereafter separated.  

As with a Separation Agreement, the solicitors for both parties are under legal obligations pursuant to Sections 5 and 6 of the Judicial Separation and Family Law Reform Act 1989, to discuss with the client, before taking or defending Judicial Separation proceedings:

• the possibility of reconciliation and supply the names and addresses of those persons able to bring about such a reconciliation;
• the possibility of employing mediation to bring about a separation on an agreed basis and supply the names and addresses of those persons who can provide the mediation service; and
• the possibility of effecting a separation by way of a Separation Deed.

On what grounds can a Judicial Separation be granted?

The Judicial Separation and Family Law Reform Act 1989 sets out that a Judicial Separation can be granted on six grounds:

• Where the respondent has committed adultery
• Where the respondent is behaving in such a way that the applicant cannot reasonably be expected to live with that person.
• There has been desertion by the respondent of the applicant for a continuous period of at least one year immediately preceding the date of the Application.
• The spouses have lived apart from one another for a continuous period of at least one year immediately proceeding the date of the Application and the respondent consents to a degree of Judicial Separation being granted.
• The spouses have lived apart from one another for a continuous period of at least three years immediately proceeding the date of the Application.
• The marriage has broken down to the extent  that the Court is satisfied in all the circumstances that a normal marital relationship has not existed between  the spouses for a period of at least one year immediately proceeding the date of the Application.

Once a Court has decided that one of the six grounds exists, there are two further conditions that must be satisfied before it will grant an Order of Judicial Separation:   firstly, the welfare of any dependant children of the marriage must be properly catered for and secondly, solicitors of the applicant and the defendant must have complied with their legal obligations as outlined above.