Legal options on Separation

Question: I am considering leaving my husband. We have been married many years. All our children have been provided for. What options in terms of a separation are available to me.

Answer: Following the breakdown of a marriage, spouses are often left confused as to what their options and rights are. After all, it is a very emotional and difficult time.

There are a number of options open to spouses following a separation and generally can be outlined as follows:

1. Live Apart

This is quite simply where the parties no longer co-habit as husband and wife but decide not to take any steps legally in order to take account of their changed circumstances. This would be a rare enough situation but nonetheless there is nothing unusual about that.

2. Deed of Separation

This is a document that can be drawn up by the parties with the assistance of a Solicitor in circumstances where the marriage has broken down but the parties do not wish, or feel the need, to go to Court to agree on the terms of Separation. The terms would be in writing and signed by both parties. It is a legally binding document which can deal with issues such as maintenance, access (where there are young children) and property.

A Deed of Separation helps to keep marital disputes out of the Courts but only works in circumstances where the parties themselves have the capacity and the ability to work matters out themselves through their respective legal advisers. Of course, it is not necessary to have a Solicitor, but given the seriousness of the content of the agreement, it is advisable that one does.

If the parties decide to sign a Separation Agreement, then they are prevented from commencing proceedings for Judicial Separation but it is not a barrier to seeking a Divorce in time. If however, a Deed of Separation is entered into, and either party fails to observe the terms of it, an application can be made to the Court by one spouse against the other spouse who fails to comply with the terms, seeking enforcement of the terms of the Agreement. A Deed of Separation does not give a party a right to remarry.

3. Judicial Separation

A Judicial Separation is a separation through the Courts in circumstances usually, where the parties themselves cannot agree terms of separation. In those circumstances, the Court can grant a Decree of Judicial Separation. There are certain criterias that have to be met before an Order can be granted for a Judicial Separation, and can generally be outlined as follows:

A. One Party has committed adultery;

B. The husband and wife have lived apart from each other for continuous period of at least one year immediately preceding the date of the application;

C. The husband and wife have lived apart from one another for continuous period of at least three years immediately preceding the application;

D. The marriage has broken down to the extent that the Court is satisfied that all the circumstances that a normal marital relationship has not existed between this husband and wife for a period of one year immediately preceding the date of the application;

E. One spouse has behaved in such a way that the applicant cannot reasonably be expected to live with the other person;

In granting a Decree of Judicial Separation, the Court can make various ancillary Orders in relation to property and maintenance and access, etc. A Judicial Separation Agreement can also take into consideration Inheritance Right. On obtaining a Judicial Separation, from either the Circuit Court or the High Court, the parties are no longer required to live together but, they cannot remarry.

4. Divorce

Divorce was introduced to Ireland in 1997 and the effect of the granting of a Divorce by a Court, is that it allows the parties to remarry. This would be unlike a situation that applies where one enters into a Deed of Separation or obtains a Judicial Separation. There is no obligation on the husband or wife to have either sought a Judicial Separation or to have a Deed of Separation in place before they actually seek a Divorce. However, before a party can make an application to the Court for a Divorce, certain criteria must be complied with:

A. At the time of the making of the application to the Court for the Divorce, the husband and wife must have lived apart for four out of the five previous years;

B. There is no reasonable prospect of reconciliation between the husband and wife;

C. Proper provision is or will be made for the spouse and dependent members of the family;

As a matter of fact, it is possible to be granted a Divorce if the parties have lived separate and apart, even under the same roof so long as the criteria of four out of the previous five years is actually satisfied.

5. Decree of Nullity

The ultimate effect for a Decree of Nullity is a finding by the Court, that the marriage never existed in the eyes of the State. The parties are free to marry each other but however, certain criteria must be satisfied before a party would be successful in obtaining a Decree of Nullity.

Conclusion:

The above are some of the options that would be available to a husband and wife in the event that one or both decide to live apart from each other and wish to put some format in place in relation to the regularisation of the changed status. The preferred option depends of course on the individual circumstances of each particular case. It is always advisable however to seek legal advice given the fact that there are and can be serious matters involved in circumstances such as this from the point of view of maintenance and pensions and property rights and access.

In addition, this is a sensitive and emotional time and the preferred course of action should be mindful of that and where possibly, all parties should be informed of all the options open to them and indeed, lines of communication should be kept open as between the parties if possible particularly, where children are concerned. Finally, each case is different, although the legal guidelines and the criteria involved are the same.

Myra Dinneen

Published: West Cork People July 2010