Judicial separation is a remedy which relieves a married couple of their obligation to live together. It is equivalent to a divorce in all respects except the most important one – it does not dissolve the marriage, and the parties are not free to remarry.
Nonetheless, because the law in Ireland does not allow a couple to divorce until they have been living separately for four of the past five years, the Board frequently receives applications for legal services for separation. It is possible for a legal separation to be concluded by way of an agreed deed of separation. Where it is possible to agree a separation without going to Court the Board encourages the parties to do this.
Applying for a judicial separation allows a couple to avail of what are known as ancillary reliefs, dealing with a couple’s children, property, maintenance, and pension.
In relation to an application to for a legal aid certificate to take judicial separation proceedings, order to determine if the requirements of section 24 and section 28(2)(d) are met, solicitors are required to give the following information to Legal Services as part of the application:
- The date upon which the parties separated (if they are living separate and apart);
- Whether there are dependent children of the marriage or not;
- The existence of any court orders in relation to the children;
- The issues that are likely to be disputed;
- A copy of the record (attendance note or letter) detailing the discussion that the solicitor had with the client in relation to marriage guidance counselling, mediation, other formal ADR forms and the possibility of negotiating the terms of a separation agreement or consent terms (in the event of a pension adjustment order being required);
- The client’s attitude to the aforementioned dispute resolution options – including any objections the client has on the basis of the behaviour of the other party;
- The attempts that have been made to negotiate a separation agreement or consent terms; and
- The likelihood of the client wanting a divorce.
For the purpose of determining the application, Legal Services should have regard to the following:
- The length of time the parties have been living apart and the likely proximity of any divorce proceedings (noting that some clients may not wish to seek a divorce);
- If there are issues in dispute in relation to access / maintenance, whether there are District Court Orders already in place;
- Whether or not there are issues that cannot be resolved in the District Court – if there are no such issues the Board should be reluctant to grant a certificate;
- Whether there are dependent children of the marriage (the requirement to explore non court based options should be considerably greater if there are no dependent children);
- The level of urgency in relation to issues that are not resolvable before the District Court – primarily property and pension issues; and
- The extent of the efforts to try and negotiate a solution and the client’s attitude towards a non court based approach – where the client has displayed a willingness to try and resolve the issues, there should be a greater inclination to grant a certificate.