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.
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.
The Family 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 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.
Grounds for a judicial separation
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.