When a couple cannot agree the terms by which they will live separately, an application to the courts for a decree of judicial separation can be made by either party. The court must be satisfied that:
- The grounds for the application exist.
- The couple has been advised about counselling and mediation.
- Proper provision has been made for the welfare of any dependants
If it is satisfied, the court will grant a decree of judicial separation.
The decree confirms that the couple is no longer obliged 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. A decree of judicial
separation does not give you the right to remarry.
Law Act 2019 commenced on 1 December 2019. It makes some important changes
to the rules for getting a decree of judicial separation in Ireland. The Act
amends the Judicial
Separation and Family Law Reform Act 1989 to change the number of years the
couple must be living apart from one another from 3 years to 1 year before the
application for a judicial separation can be made.
You cannot apply for a judicial separation when you already have in force a separation agreement which has been made an order of court. An application for a judicial separation must be based on one of the following six grounds:
- One party has committed adultery
- One party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them
- One party has deserted the other for at least one year at the time of the application
- The couple 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). The Family Law Act 2019 also provides a new definition of the term ‘living apart’ (see ‘Living apart’ below).
- 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.
The last is by far 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. It clarifies that spouses who live in the same home as one another are considered to be living apart if the spouses are not living together as a couple in an intimate and committed relationship. The Act also sets out that a relationship does not cease to be an intimate relationship merely because the relationship is no longer sexual in nature.
How to apply
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 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, 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 the court is satisfied that you have grounds for a judicial separation, it will grant a decree.
Further information on applying for a judicial separation is available on the Courts Service website.
Legal advice and representation is always advisable. You and your spouse should not use the same solicitor.
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.
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 obtain some quotes before deciding on a legal firm. Contact information for solicitors firms throughout Ireland is available on the Law Society website.