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.
Currently it is not possible for couples to divorce unless they have been living separate and apart from each other for two out of the previous three years. Most couples, however, need to sort out their affairs immediately upon separation and cannot wait three years to do so.
A separation agreement is an agreement whereby both parties agree to separate from each other (either by themselves, through mediation or through negotiation by their legal representatives).
The agreement will include a number of terms, including the agreement to separate and live apart and how you will divide marital assets such as the family home. In addition, it may also provide for issues such as investment property, Guardianship, custody, access and maintenance if your children are under 18 (or 23 if in full-time education). If you are dependent on your spouse and have not worked during the marriage, you may also be entitled to financial support after the marriage has broken down.
When you enter into a separation agreement with your spouse, you generally cannot subsequently issue legal proceedings seeking a judicial separation but you can make an application for divorce, subject to you meeting the requirements for a divorce. However it is always open to either spouse to bring an application to review maintenance payments both for the other spouse and for any children and similarly neither party can be prevented from bringing an application to deal with issues in relation to custody, access or guardianship.
It is important to note that a separation agreement is not suitable to deal with issues such as your pension and your succession rights – that is, what will happen to your assets when you die. In order to properly deal with your pension and succession rights you will need a Court order.
The trustees are not entitled to alter the terms of a pension purely at the request of the pension holder. The trustee must follow the terms and conditions of the pension scheme or follow a court order. Therefore a Separation Agreement which deals with the pensions will not be enforceable or binding on the trustees of the pension fund. A Judicial Separation Order or Divorce Order however is legally binding on them.
Please feel free to contact us if you have any queries concerning any of these matters. We will be delighted to hear from you. Please contact us: – by phone on 065-6828990 or email us at finfo@callinanmurphy.ie or lornahrehorow@berwick.ie or use the ‘Contact Us’ section of our website.
Costs and expenses involved in judicial separation and divorce in Ireland
Costs will vary in accordance with the complexity of the matter. If the substantive issues (distribution of pension, assets etc) have been agreed, then the legal costs will be less. The more complex and time-consuming the dispute , the higher will be the fees. At the beginning, we will give you an estimate of the costs and expenses. At all times, we will strive to avoid costly disputes with the other party where this can be avoided; all this will keep costs down and work out best for you. However, it will be your decision as to whether to accept proposed settlements or to press ahead more forcefully; the aim will be to get the best possible result for you.
Obviously, if the matter is disputed acutely in court, this will increase the costs. However, in certain cases, this is the only way to achieve a good result.
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Frequently asked questions for Divorce and Separation
What are the differences between entering into Legal (Judicial) Separation and obtaining a Divorce?
If you obtain a Legal Separation (also called Judicial Separation), you continue to be married and cannot remarry. On the other hand, divorce is final; marriage is at an end, this cannot be reversed and you are free to remarry. However, a Legal Separation does settle a lot of matters such as financial arrangements, ownership of assets, access/custody of children and other such factors so it is often the appropriate step where one does not want the finality of divorce.
Is it necessary to obtain a Judicial Separation before you apply for a divorce?
The answer is ‘no’; judicial separation is not a pre-requisite for applying for divorce.
Explain mediation
This is a process which is often very effective and involves an independent person (mediator) liaising between the parties with a view to trying to reach agreement on issues (before any court hearing and thus avoiding the costs involved in having too much disagreement). The mediator will try to resolve matters such as asset division, pension, custody and access to children. Mediation and the work of the mediator can also avoid the bitterness that can develop between parties when litigation becomes sharp.
How about a DIY divorce?
You are free to engage in the whole process yourself, without a lawyer (DIY divorce). However, it is generally advisable to engage a solicitor as matters can be complex and legal know-how will help you get the best results and help to keep stress-levels low. In our view, engaging family law solicitors avoids a lot of potential difficulties.
Our recommendation is that there should be family law solicitors for each party so as to increase the chances of a satisfactory result.
Is it possible to get a divorce online?
The answer is that this cannot be done in Ireland as you must submit the application through the Circuit Court Office.
Is there a special divorce court?
The applications take place at the local family law court.
How long does the process of obtaining a divorce or legal separation take?
There is a backlog in the court system and, accordingly, it may take many months before your case will come up for hearing. Furthermore, there can be other reasons for delays; for example, if there is a lot of disagreement between the parties (here it might take nine months). On the other hand, whether as substantial agreement between the parties, it takes considerably less time (maybe up to six months).
What is the position when I am waiting for my divorce?
Normal life takes place. If there are issues such as access to children/custody or maintenance, then these applications can be made separately to the court (of these cannot be agreed out of court) to deal with these issues. These will be interim orders and sometimes they are necessary. The issue of who lives in the family home (unless both have agreed to do so) can also be an issue. Callinan Murphy (worse working closely with our sister-firm Berwick solicitors in Galway) can help you on any of these aspects.
Who gets the family home?
This might or might not be the biggest asset (obviously depending on parties wealth).
If there is a pension, this can also be very substantial. Pension adjustment orders can be made whereby a spouse (who might have a lesser pension because, for example, he or she has been taking care of more household duties) is given some of the other spouse’s pension. Obviously, some pensions can be very valuable and so will be a big issue to be decided. Once a pension adjustment orders made, this needs to then be passed on to the Trustees of the pension scheme to ensure that the division takes effect in due course. It is most important that the pension division be dealt with properly, so that problems do not arise down the line. In this regard, Callinan Murphy (working with Berwick solicitors in Galway) are experienced family law solcicitors who can offer you legal advice in this regard.
It is the court’s obligation to be as fair as possible to both sides and to make fair distribution. The court will take into account the overall financial circumstances of each party and make appropriate adjustments.
What is involved in the divorce process?
Family law courts are held in private, so that only the parties involved and their legal advisers are in court. If there is substantial agreement between the parties and it is just a matter for the family law courts to rubber stamp, then the hearing before the judge can be quick. On the other hand, if there is a considerable dispute, then evidence will likely have to be given before the court by both parties and the hearing can be protracted.
The position is that, even if one party has behaved very badly, divorce will still be granted, provided they satisfy the legal requirements.
Is there a need for a barrister?
The answer is that solicitors can do the work without barristers if the matter is not too complex. Barristers are recommended where matters are complex and where the expertise of a barrister in court might be required. Callinan Murphy will give you a good idea about this from the beginning.
What should you do if you want a divorce?
You should brief our family law solicitors for legal advice.
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