Relationships ending are a very painful time for people, particularly so when it is a marriage that has ended. There are legal considerations along with the difficult tasks of agreeing custody, access, the family home and finances.
If you have decided to separate, you need to know what your legal position is. Some people want to obtain a divorce as quickly as possible. Others simply want to live apart but without obtaining a divorce.
For married couples, there are three options available depending on the length of time you have been separated.
1. A Deed of Separation
There are no legal grounds in Ireland that must be met for a married couple to physically separate. If the marriage has ended, the parties can separate and live independently of each other. They can decide issues like access and custody if there are children involved, who lives in the family home and how to divide or manage the family finances.
Whatever agreement is reached can be set out in a Deed of Separation. If executed properly, a Deed of Separation is a legally binding contract and can be ruled by the court so that it can be more easily enforced if issues arise.
A Deed of Separation cannot deal with pensions so agreements on pensions set out in a deed are likely to be unenforceable. Once you have executed a deed, you are not eligible to apply for a Judicial Separation.
A couple remains legally married under a Deed of Separation.
2. Judicial Separation
The grounds for Judicial Separation in Ireland are:
- The respondent has committed adultery; or
- The Respondent has behaved in such a way that the Applicant cannot reasonably be expected to live with them; or
- There has been a period of desertion by the respondent for a continuous period of at least one year immediately before the date of the application; or
- The spouses have lived apart from one another for a continuous period of at least one year immediately prior to the date of the application (and the respondent consents to the application); or
- The spouses have lived apart from one another for a continuous period of at least one year immediately before the date of the application; or
- A marriage has broken down to the extent that the court is satisfied that a normal marital relationship has not existed for a period of at least one year immediately before the date of the application.
A couple remains legally married under a decree of Judicial Separation.
To be eligible for a divorce in Ireland, the parties must:
- Have been living apart for at least 2 out of the previous 3 years before the application is made; and
- At least one of the spouses must be domiciled in Ireland when the application is made or at least one of them must have lived here for at least 1 year before the application is made; and
- There must be no reasonable prospect of reconciliation; and
- Proper arrangements have been or will be made for each spouse and any dependent members of the family.
A decree of divorce dissolves the marriage.
Any agreement (Deed) or orders (Judicial Separation) made will be considered by the court when hearing a divorce application so it is very important to get professional advice from the outset.
If you are considering separation, please contact us to discuss the best option for you and your family.