Solicitor & Notary Public
Donegal

+353 (0)74 915 3333

Separation

Once the parties to a marriage agree that their marriage has irretrievably broken down, they can agree to separate immediately by way of a Separation Agreement.

In this case the parties will have to come to agreement on the following issues;

  1. The division of the Family Home
  2. Division of Other Property
  3. Guardianship & Custody (If there are children to the marriage)
  4. Access to the children
  5. Maintenance
  6. Succession Rights
  7. Pension
  8. Full and Final Settlement towards a Divorce.

Often it is the case that the parties consult an independent mediator to agree the above heads of agreement and then the heads of agreement are then sent to their solicitors to formulate the agreement into a legally binding contract, known as a Deed of Separation.

Separation Agreements only work if both parties are willing to go through the process together and one spouse cannot compel another spouse to go through this form of separation.

In instances where one spouse refuses to consent to a Separation Agreement, then one must see if the parties would qualify for a Judicial Separation or a Divorce.

Remedy in case of a breach of a term of the agreement

It is recommended but not required that a legal separation should be ruled upon by the court if the agreement contains a provision regarding a maintenance payment or a provision relating to the disposal of any property.

In the event of a breach of the term of the agreement either party has a remedy to re-enter the matter before the court and seek the courts direction in regard to the breach a term of the agreement.

This will add additional cost to the separation agreement but is more cost effective in the case of a breach of a term.

Alternatively, if a breach occurs and the separation has not been ruled upon by the court, the aggrieved spouse would have to seek remedy by way of specific performance of the agreement which could result in considerably more legal costs.

Judicial Separation

If spouses cannot agree to separate by way of Separation Agreement, one party can initiate a separation through the Judicial Separation procedure. However, one the following criteria must be met to be able to issue Judicial Separation proceedings;-

  1. One party has committed adultery.
  2. One party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them.
  3. One party has deserted the other for at least one year at the time of the application.
  4. The parties have live apart from one another for one year up to the time of the application and both parties agree to the decree being granted
  5. The parties have lived apart from one another for at least three years at the time of the application for the decree (whether or not both parties agree to the decree being granted)
  6. The court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of the application for the decree.

Judicial Separation is often a lengthier and more costly way of separation that separation by a Separation Agreement.

To begin the Judicial Separation process one spouse would instruct a Solicitor to issue proceedings in the Circuit Court by way of Family Law Civil Bill.

The Spouse receiving the proceedings is known as the Respondent and is required to enter an Appearance and thereafter reply to the Family Law Civil Bill with the Respondent’s Defence. Factor to be considered with regard to a Judicial Separation are the same factors which need to be considered for a Separation Agreement and include;

  1. The division of the Family Home
  2. Division of Other Property
  3. Guardianship & Custody (If there are children to the marriage)
  4. Access to the children
  5. Maintenance
  6. Succession Rights
  7. Pension
  8. Full and Final Settlement towards a Divorce.
     

Call Us Now

Call us

Request a Callback

Callback

Send Us A Message

Email Us