Marital Breakdown - Separation Agreements

Marital breakdown

Marriage is a legally binding contract. However separation can be achieved in a number of ways. For instance a marriage can be declared null and void where the couple were, in effect, never legally married to one another, or, if a valid subsisting marriage exists, the parties can agree the terms of their separation. Further the marriage contract can be terminated by decree of Judicial Separation or Divorce.

Separation Agreements

A separation agreement is a document that may be drawn up and executed by you and your spouse if you can agree the terms on which you will live separately. It avoids recourse to the courts.

We negotiate, conclude and draft same.

What types of issues are dealt with in a Separation Agreement?

Guardianship, Custody Access; Maintenance; Property; Succession; Pensions; Taxation; Indemnification. See below for more information on the types of arrangements the courts negotiate under these headings.

If I execute a Separation Agreement could there be any more contention over the issues agreed on i.e. could I or my spouse later seek a Judicial Separation?

No. Spouses will be precluded from seeking a decree of Judicial Separation, as a Separation agreement is a binding contract and it is deemed unfair to allow one party to unilaterally repudiate that agreement. However, a separation agreement cannot act as a bar to a spouse instituting Maintenance proceedings or proceedings to vary guardianship, custody or access arrangements previously agreed.

Does a Separation Agreement act as a bar to Divorce?

No. The legislation dealing with divorce merely requires the court, in determining what provision should be made for spouses and dependant children to have regard to the terms of any separation agreement which is still in force.

Judicial Separation

In the event that you and your spouse are unable to reach an agreement, an application to the courts for a Decree of Judicial Separation can be made. Judicial Separation sets up a framework for the future until you meet the State’s stringent requirements for Divorce.

On what grounds can I seek a Judicial Separation decree?

• Adultery: Committed by either you or your spouse.
• Unreasonable conduct: Your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her.
• Desertion: Your spouse has deserted you for a continuous period of at least one year.
• Living apart & consent: You and your spouse have lived apart for a continuous period of at least one year and your spouse consents to a decree being granted.
• Living apart: You have lived apart from one another for a continuous period of at least three years.
• Normal marital relationship does not exist: The court is satisfied in all the circumstances that a normal marital relationship has not existed between you and your spouse for a period of at least one year.

What is the effect of a decree of Judicial Separation?

The granting of a decree of judicial separation terminates the marital relationship and permits the court to make various ancillary relief. See below for the types of ancillary orders.