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Leaflet 3: Separation
Where a spouse no longer wishes to co-habit with the other spouse, it is possible to become legally separated. This can be done by:
- the parties entering into a separation agreement; or
- getting an order of judicial separation in court.
Separation agreement
A separation agreement is a legally binding written contract between a husband and wife setting out their future rights and duties. Such an agreement is also known as a Deed of Separation. The agreement will include a number of terms, including:
- an agreement to live apart and not to disturb or interfere with the other spouse;
- arrangements regarding responsibility for, and care of, the dependent children, including the level of contact (access) that each spouse will have with the children;
- the amount of maintenance to be paid for the support of the dependent spouse and children and how and when the maintenance is to be paid;
- arrangements regarding ownership and occupation of the family home and any other property and the responsibility for paying any mortgage(s);
- arrangements regarding any property acquired by either spouse after the date of their separation;
- an agreement in relation to the rights of the spouses to inherit from each other. Such an agreement does not affect the rights of any children to inherit from their parents; and
- any other agreement between the spouses.
After separating, a spouse may wish to continue to benefit from the other spouse’s occupational pension. However, as trustees of a pension scheme are not obliged to honour a term in a separation agreement that varies pension rights, it is generally necessary to get a court order.
Social welfare pensions are not affected by the terms of a separation agreement.
Judicial separation
If spouses cannot reach a separation agreement or if only one spouse wants to separate, an application can be made to the court for an order for judicial separation.
Advice on counselling and mediation
A solicitor advising a person about judicial separation is required to give advice about:
- counselling services, to help bring about a reconciliation; and
- mediation services, to help negotiate the terms of a separation agreement.
Grounds for judicial separation
A court can grant an order for judicial separation on one or more of the following grounds:
- adultery;
- unreasonable behaviour;
- desertion for a continuous period of one year prior to the time of the application;
- spouses living apart for one continuous year prior to the time of the application and both spouses consent to a decree being made;
- spouses living apart three years, whether or not the other spouse consents; or
- no normal marital relationship has existed between the spouses for at least one year.
Ancillary or additional orders
In making an order for judicial separation, the court may also make ancillary or additional orders in relation to matters such as:
- custody and access arrangements in relation to dependent children;
- financial provision for the dependent spouse and children by means of maintenance to be paid at fixed intervals and / or lump sums;
- exclusion of a spouse from the family home by giving the other spouse the right to reside in the family home, for life or for a fixed period;
- barring of a spouse from the family home by prohibiting that spouse from entering it and from using or threatening violence against the other spouse and/or their children. Alternatively, without prohibiting a spouse from entering the family home, the court may make a safety order prohibiting a spouse from using or threatening violence against the other spouse or their children;
- property arrangements in relation to the family home and other family property for the benefit of either spouse and / or dependent children, for example:
- giving one spouse the right to occupy it for life or for a fixed period;
- sale of the property subject to conditions;
- placing property in joint names or in the sole name of one of the spouses;
or
- any other relevant orders;
- financial compensation making provision for the future financial security of a spouse through insurance policies and requiring either spouse to:
- take out a life insurance policy for the benefit of the applying spouse or dependent child; and/or
- assign the benefit of an existing insurance policy to the applying spouse; and/or
- pay the premiums on a policy;
- inheritance/succession matters whereby the rights of either spouse to inherit from the other spouse may be extinguished. The court must be satisfied that adequate and reasonable provision has been made for a spouse before it will extinguish his / her rights. However, unless the court orders otherwise, there are still certain circumstances, where a spouse can apply to court for a share of the estate of the other spouse;
- pension arrangements adjusting the pension entitlement of either spouse. However, the court will only make a pension adjustment order if proper provision has not been, or cannot be, made for the spouse and children through the making of other financial of property orders. A spouse can seek such an order either for his / her own benefit or for the benefit of dependent children;
- emergency/temporary matters can be dealt with before the hearing of an application for a judicial separation, for example where one spouse is:
- incurring debts and endangering the family home or other property;
- threatening to remove money from bank accounts or to spend or hide a redundancy / gratuity / compensation / damages payment that s/he is aboutto receive or has recently received; or
- threatening to remove or sell household contents or other family assets.
Re-marriage
Separation does not give the spouses a right to remarry.
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