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.
An application for a judicial separation is made either in the Circuit Court or the High Court. As in all family law matters, cases are heard in private and the public is not admitted to the courtroom.
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 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
- 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)
- 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.
When you are applying for a judicial separation you must submit four 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. 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. 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. 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 and you will need to show the court that you meet the requirements of the Judicial Separation and Family Law Reform Act 1989. 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.
A decree of judicial separation does not give you the right to remarry.
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.
How to apply
The family law civil bill and sample forms for the statement of means, the statement on children's welfare and the certificate that you have been advised of alternatives are available from the Courts Service website. You can also obtain copies of these forms, and the family law civil bill, from your nearest Circuit Court Office.
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.