What is judicial separation?
When a couple cannot agree the terms by which they will live separately, either person can apply to the courts for a 'decree of judicial separation'. The decree confirms that the couple no longer have to live together as a married couple. The court may also make orders in relation to custody and access to children, the payment of maintenance and lump sums, the transfer of property, the extinguishment of succession rights, etc.
Before the court grants you a decree of judicial separation, it must be satisfied that:
- The grounds for the application exist (see Grounds for judicial separation below)
- The couple has been advised about counselling and mediation
- Proper provision has been made for the welfare of any dependants (children)
You can apply for a judicial separation in either in the Circuit Court or the High Court. As in all family law matters, cases are heard in private (also known as 'in camera) and the public is not allowed into the courtroom.
A couple must be living apart from one another for at least 1 year before applying for a judicial separation – see ‘Living apart’ below. This is set out in the Family Law Act 2019 (pdf).
A decree of judicial separation does not give you the right to remarry. To
remarry, you must get a divorce.
Grounds for judicial separation
You cannot apply for a judicial separation when you already have a separation agreement in place which has been made an order of court.
An application for a judicial separation must be based on one of the following 6 grounds:
- You or your spouse has committed adultery.
- One of you has behaved in such a way that it would be unreasonable to expect you both to continue to live together.
- One of you has deserted (left) the other for at least one year at the time of the application.
- You have lived apart from one another for at least one year at the time of the application for the decree (whether or not both parties agree to the decree being granted) - see ‘Living apart’ below.
- The court considers that a normal marital relationship has not existed between you for at least one year before the date of the application (this is the most common ground on which the decree is granted, as neither party has to be shown as being at fault).
The Family Law Act 2019 provides a definition of ‘living apart’ to give certainty to the interpretation of the term in the Irish courts. A married couple who live in the same home as one another are considered to be ‘living apart’ if they are not living together as a couple in an intimate and committed relationship. The Act also states that a relationship does not stop being an intimate relationship just because the relationship is no longer sexual in nature.
How to apply for a judicial separation
When you are applying for a judicial separation you must submit 4 documents to the Circuit Court:
- An application form (known as a family law civil bill). This document describes both you and your spouse, your occupations and where you live. It also sets out when you married, for how long you have been living apart and the names and birth dates of your children.
- A sworn statement of means (Form 37A). This document sets out your financial situation. This includes your assets, your income, your debts and liabilities, and your outgoings.
- A sworn statement relating to the welfare of your children (Form 37B). This document sets out the personal details of the children of the marriage. It describes where they live and with whom. It also describes their education and training, their health, childcare arrangements and maintenance and access arrangements.
- A document certifying that you have been advised of the alternatives to judicial separation (Form 37D). This document is sworn by a solicitor and it certifies that you have discussed the options of reconciliation (getting back together), mediation and separation agreements.
When both you and your spouse have filed all of the necessary documents, you will be given a date for the court hearing. The hearing will be held in private. You can read more about the factors considered by a court in a judicial separation case here.
If all the conditions are met and you have grounds for a judicial separation, the court will grant you a decree of separation.
Further information on applying for a judicial separation is available on the Courts Service website.
Going to court
Legal advice and representation is always recommended. A solicitor who specialises in family law can help you by explaining the process and your options. You and your spouse should not use the same solicitor. Find contact information for solicitors throughout Ireland on the Law Society website.
- Find out about case progression (the management of your case before the actual hearing)
- Watch a video on how to prepare for your family law hearing, and
- Watch a video on what happens on the day you attend the family court
Getting legal advice
You are not legally required to use a solicitor or a barrister. In fact, if you wish, you can choose to represent yourself. However, there may be complex issues which may make it very difficult to apply for a judicial separation without any professional help.
If you choose to hire a private solicitor, you should be aware that there is no fixed rate of charges for legal fees. You are advised to get some quotes before deciding on a legal firm. Contact information for solicitors firms throughout Ireland is available on the Law Society website.
Free legal advice
FLAC (Free Legal Advice Centres) is an
independent, voluntary organisation that operates a network of legal advice
clinics throughout the country. These clinics are confidential, free of charge
and open to all. Contact your nearest Citizens Information Centre
for information on FLAC services in your area. FLAC also runs an information
and referral line during office hours for basic legal information.