When couples decide to end their marriage, many opt for a legal separation to address financial and childcare matters. A common pathway is to enter a separation agreement, which enables them to bypass court proceedings. However, in some cases, it may be necessary to seek a decree of judicial separation.
Here we explain what is involved in obtaining a judicial separation, how it differs from a separation agreement, and why it is sometimes the advisable route for resolving issues pertaining to finances and child custody.
What is a judicial separation?
A judicial separation is a legal process that allows a married couple to live apart and formalise their separation without ending their marriage. Unlike a divorce, which dissolves the marriage, a judicial separation leaves the marriage in place while recognising that the couple is no longer cohabiting. Ireland has undergone significant social change since the introduction of the Judicial Separation and Family Law Reform Act, 1989, however, many couples continue to opt for legal separation rather than divorce for religious or personal reasons, or perhaps due to uncertainty about ending the marriage permanently. A decree of judicial separation is a court order made by a judge and sets out the terms by which the couple live apart. Once granted by the court, its terms, such as property division, child custody, and maintenance arrangements, are legally binding and can be enforced like other court orders.
What is the difference between a separation agreement and a judicial separation?
A separation agreement is a private contract drawn up and agreed upon by both parties. It outlines the terms on which they will live apart, addressing issues like property division, child custody, and spousal support. As a private arrangement, it doesn’t require court intervention unless one party seeks to enforce its terms. While offering flexibility and privacy, its informal nature means it’s potentially less enforceable than court-ordered arrangements.
On the other hand, a judicial separation is a formal process where a court grants a decree setting out the terms of the separation. This decree acknowledges that the couple no longer cohabits but remains legally married. In granting a judicial separation, the court ensures that proper provisions are made for both parties and any dependents. The terms of a judicial separation are legally binding and are more straightforward to enforce than a separation agreement.
In essence, while both mechanisms enable couples to live apart, a separation agreement is a private, contractual arrangement, whereas a judicial separation is a formal, court-sanctioned process with terms that carry the weight of a court order.
When is a judicial separation required?
A judicial separation may be required for couples that are unable to resolve matters relating to finances, property, and child maintenance, but don’t want to wait 2 years to initiate divorce proceedings (spouses must have lived apart for 2 years to be eligible to apply for divorce). It may also be the preferred option for some couples who wish to live apart without permanently ending the marriage.
What are the grounds for a judicial separation?
To apply for a decree of judicial separation, either you or your spouse must be permanently living in Ireland and must have been living in the country for at least a year prior to the application. The applicant spouse must state one of the following grounds:
- You or your spouse has committed adultery.
- You or your spouse has acted in a manner that makes it unreasonable to continue living together.
- One spouse has abandoned the other for a minimum of one year at the application’s time.
- You have lived apart for at least one year when applying, irrespective of whether you both agree to separate.
- For a year leading up to the application, a regular marital relationship hasn’t existed.
How is “lived apart” defined?
The Family Law Act 2019 elucidates the meaning of living apart for clarity in Irish courts. Even if a married couple resides in the same household, they are deemed “living apart” if they no longer share an intimate and committed bond. The Act emphasises that intimacy isn’t solely defined by a sexual connection; a relationship can remain intimate even if it lacks a sexual component.
How is a judicial separation applied for?
To apply for a judicial separation decree, it is necessary to submit an original family law civil bill along with two copies to the Circuit Court Office. This bill should outline the main aspects of the claim, the legal basis for the claim, and any specific requests, such as maintenance payments.
When applying, it’s essential to also provide two key documents:
- The Affidavit of Means – detailing an individual’s assets, income, debts, liabilities, pension data, and regular expenses.
- The Affidavit of Welfare – which provides details about dependent children, including their living and access conditions, and any specific educational or health requirements.
If claiming a share of a spouse’s pension, a notice to trustees must be submitted. After submission, the Circuit Court Office will keep the original and return two copies. The applicant is then required to deliver one copy to their spouse.
Considering a legally binding separation from your spouse?
If you have reached the decision that your marriage is over and you’re at the stage where you’d like to formalise your separation, McCarthy + Co’s highly experienced family law solicitors can assist you in taking the best steps forward. Arrange a consultation with us using our confidential online form and a member of our team will be in touch to schedule a time for your appointment.