A separation is a legal recognition of the irretrievable breakdown of a marriage, and it can be secured either by agreement or by order of the court. It differs from divorce because the marriage is not dissolved, and the parties remain each other’s spouses and are not free to re-marry.

Separation Agreement

When a couple decides to separate it does not necessarily mean that they must rely upon the courts for a resolution. A couple may enter into a separation agreement. This means that both parties agree to live separate apart from each other and they also agree on all other aspects of their separation, including financial and living arrangements regarding their dependent children, broader financial arrangements such as custody, maintenance, family home, pensions, succession rights and all other matters.

A separation agreement is a legally binding agreement which sets out the duties and obligations of the separating parties. If a couple can formalise their separation in this manner, it typically involves less conflict and avoids the necessity to seek the direction of the courts. The terms of the agreement can be reached either through collaborative practice, mediation and/or negotiation through solicitors.

The actual agreement when it is drawn up and signed by both parties is often called a ‘Deed of Separation’. When the agreement is signed, it can be made a rule of court by application to the court. This ensures that all the terms agreed upon can be enforced with the support of the courts, should either party fail to comply with the terms as agreed. To make the terms of agreement an order of the court, the parties typically seek the assistance of their respective solicitors.

Once a Deed of Separation is signed by both parties, they are then precluded from bringing judicial separation proceedings.

If reconciliation is later reached and both parties wish to resume their relationship, the separation agreement may be reversed upon application to the court.

Judicial Separation

If a couple cannot agree the terms of their separation but wish to formalise a separation, proceedings can be issued for a decree of judicial separation by one of the spouses. A judicial separation is an order from the courts, confirming that the parties are legally separated, and it must be supported by the necessary parenting and financial orders to ensure that proper provision is made for all parties. A decree of judicial separation removes the obligation on spouses to co-habit, but it does not give you the right to re-marry.

Rules for Securing a Decree of Judicial Separation

A spouse can seek an order of judicial separation on one or more of the five grounds identified under law. The grounds relied upon must have been proven to the satisfaction of the court.

The grounds are as follows: 

1. Adultery by the respondent (non-applicant) spouse.
2. The respondent spouse has behaved in such a way that it would be unreasonable to expect the applicant spouse to continue to live with him/her.
3. The respondent spouse has deserted the applicant spouse for a continuous period of at least one year at the time of the application.
4. The couple has lived apart from one another for a continuous period of at least one year immediately preceding the date of the application.
5. 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.

Before granting a judicial separation, the court must also be satisfied that:

• Both parties have been advised about the possibility of resolving their difficulties through counselling and/or mediation, and/or the execution of a separation agreement. Note that a spouse cannot apply for judicial separation where there is a binding separation agreement already in place.
• Proper provision has been made for the couple and any dependent children.

Additional orders can be made by the court, including orders relating to custody and access, maintenance and payment of a lump sum, the transfer of property and pension rights, and the extinguishment of inheritance or succession rights. Where immediate financial support is required by one spouse, the court can hear an interim application once proceedings have been issued and orders, including interim maintenance, can be made to last up to the full hearing of the judicial separation application.

Resources

• The Legal Aid Board has produced a useful overview of the process of separation including an explanation of separation agreements and judicial separation, and details relating to the orders that might be made by the court. 

• The Citizens Information and Courts Service websites provides further information on judicial separation, including how to apply. 

• FLAC has also produced a comprehensive information leaflet on separation. This leaflet sets out the difference between a separation agreement and judicial separation and also includes information on the options available to support the negotiation of an agreement either by mediation or collaborative law.

• TUSLA, the Child and Family Agency, with the support of Barnardos, have created a number of very useful leaflets for parents and children on how to cope with a separation:
  • Coping with Separation (For Parents): This is a very useful tool for any parent who has separated from their spouse to help them understand the needs of their children before, during and after separation. This leaflet aims to assist parents in dealing with children from the ages of 6-12 years.
  • Coping with Separation (For Children aged 6-12): This leaflet aims to inform and assist children aged 6-12 where their parents are in the process of separating.
  • Coping with Separation (For Teenagers): This leaflet aims to inform and assist teenagers where their parents are in the process of separating. 

Contacts