Separation agreements

If a married couple or civil partners can agree the terms on which they will live separately, they may enter into a separation agreement. The point of a separation agreement is that it is an agreement and both parties must agree to the terms of the agreement.

The agreement is a legally binding contract setting out each person's rights and obligations to the other. The terms of the agreement are usually reached either through mediation or negotiation through solicitors. A deed of separation is not a court order and does not allow either partner to remarry.

If agreement can be reached reasonably quickly and a separation agreement drawn up, it is cheaper and less stressful than going to court. Many couples formalise their separation in this way.

If a couple cannot agree terms for living separately, either person can apply for a decree of judicial separation. If a couple have agreed the terms of their separation, they may also apply to the court to turn their deed of separation into a decree of separation to get court recognition of the agreement.

Reaching agreement

You and your spouse or civil partner may be able to negotiate the terms of the agreement without help.

If you cannot agree on the terms of your separation, some legal options available to help you reach an agreement are:

• Mediation
• Negotiation through solicitors
• Collaborative practice

Mediation is not marriage counselling. Its purpose is not to help a couple to reconcile or get back together.

The purpose of mediation is to help couples who have decided to separate to resolve any disputes they may have in relation to the key issues such as custody and access to children, maintenance and property rights. The mediator is neutral and encourages the separating couple to co-operate with each other in working out mutually acceptable arrangements that they will stick to. Any separating couple can use mediation, whether they are married or not.

Mediation usually takes between 3 and 6 sessions but this can vary depending on how complex the situation is. Each session lasts approximately 1 hour.

If agreement is reached, the mediator will draw up the terms of the agreement. It is strongly recommended that people seek independent legal advice before signing the agreement.

Mediation is confidential and what is discussed with a mediator is not admissible if agreement is not reached and there are subsequent court proceedings.

It is advisable for couples who choose mediation to ensure that they get legal and financial advice before doing mediation so that they know their rights and can make informed decisions.

Mediation might not be appropriate in certain cases, for example if there has been domestic violence. A mediator can tell you whether your situation is suitable for mediation.

A solicitor can help you understand the impact and consequences of certain decisions about important issues such as custody and access, maintenance and the family home. Where the agreement is negotiated through solicitors, both of you should have your own solicitor to ensure that you receive independent legal advice.

Collaborative practice is a way of resolving family law matters, including separation and divorce. Both you and your spouse or partner work with collaborative lawyers. Everyone signs an agreement disqualifying your collaborative lawyers from representing you in court if the process breaks down. Neither lawyer can act for you in any contested court proceedings.

Through face-to-face meetings, you and your spouse or civil partner discuss and resolve issues such as custody and access to children, maintenance and property rights. The process is dependent on both parties being truthful about all of their assets so that negotiations can be open and honest.

If the process is successful you will have an agreement with your spouse or civil partner which you will both have had responsibility for.

Not every lawyer is trained in collaborative law so it is important to use lawyers that have the relevant skills for the best outcome.

The actual document drawn up and signed by both parties, when agreement is reached, is often called a deed of separation. It is a legally binding written contract. The main issues dealt with in a separation agreement are:

• An agreement to live apart
• Agreed arrangements in relation to custody and access to children
• Who should live in the family home, ownership of the family/shared home and any other property
• Maintenance and any lump sum payments
• Indemnity from the debts of the other spouse/civil partner
• Taxation
• Succession rights.

The agreement can be made into a rule of court by application to the court. This means the terms agreed can be legally enforced more easily.

Reversing a separation

If you and your former partner decide to get back together, you can apply to the court to have your deed of separation cancelled. You will have to satisfy the court that you have reconciled as a couple and that you plan to resume living together as a married couple.

The Family Mediation Service is part of the Legal Aid Board and is free of charge. Alternatively you may choose to pay a private mediator. Private mediators charge in a variety of ways (daily rate/hourly rate/flat rate). The Mediators' Institute of Ireland can provide you with a list of private accredited mediators.

If you are eligible for legal aid and advice from the Legal Aid Board, you generally have to pay a contribution towards costs. The Legal Aid Board can provide you with a lawyer trained in collaborative practice. Private collaborative practitioners charge an hourly rate which you can agree in advance.

If you choose to use a private solicitor, you should be aware that there is no fixed rate of charges for legal fees. You are advised to obtain some quotes before deciding on a legal firm.

To enquire whether you are eligible for legal aid, contact your nearest law centre. The law centre staff will assess your means and advise on financial eligibility. You can also check whether you may be financially eligible online.

If you wish to engage the services of a solicitor privately, the Law Society of Ireland maintains a list of registered solicitors throughout the country.

Contact the Family Mediation Service for more information about the service and a list of its centres throughout the country. Contact details of private family law mediation solicitors are available on lawsociety.ie and the Mediator's Institute of Ireland website mii.ie.

The Irish Assocation of Collaborative Professionals promotes the use of collaborative law. You will find more information and lists of practitioners on its website.

FLAC (Free Legal Advice Centres) is an independent, voluntary organisation. A limited number of FLAC phone clinic appointments are offered in conjunction with Citizen Information Services around the country. These appointments are with a volunteer lawyer and are confidential and free of charge. Contact your nearest Citizens Information Centre for information on FLAC phone clinic appointments in your area. FLAC’s Information and Referral Line for basic legal information is open Monday to Friday from 9.30am-1pm.