separation - flac.ie · flac legal separation v2_layout 1 27/06/2014 15:05 page 11. you are allowed...

July 2014

separation

FLAC Legal SEPARATION v2_Layout 1 27/06/2014 15:05

When a marriage breaks down, the couplecan arrange for a formal separation. Thecouple may eventually decide to divorce (seeseparate information leaflet on Divorce).There are two different ways for marriedcouples to separate:

1. Separation agreement;

2. Judicial separation.

You can also do a lot of work towardsagreeing on the eventual settlement beforeyou ever go to court, which may save moneyand time in the long run.

Options for negotiated agreements

before going to court

1. Mediation

Family Mediation is a process in which animpartial third person (the mediator) assiststhose involved in family breakdown to reachagreement regarding their children, financesand property. Mediation is particularly usefulwhere the parties have agreed to separate ordivorce or where they have any issues relatingto maintenance, custody, access orguardianship.

The courts favour mediation and judges willadjourn cases in some instances and suggest

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mediation before proceeding with the case incourt.

The mediator should be accredited andprofessionally trained – his/ her job is tomanage negotiations in an impartial way.Generally speaking mediation takes place over3 to 6 sessions. The parties should obtain theirown separate legal advice throughout themediation process.

When agreement is reached, the mediator willdraw up a written document usually referredto as a memorandum of understanding thatsets out what the parties have agreed. Theparties will each be advised by the mediatorto get independent legal advice and themediated agreement can then form the basisof the Deed of Separation or Decree ofJudicial Separation/Divorce on consent terms.

Note: A mediated “agreement” ofunderstanding is not a legal agreementuntil it is formalised by a Deed ofSeparation or Court Order.

The Family Mediation Service is a state-run,non-means tested and free service formingpart of the Legal Aid Board. There can be awaiting time of a number of weeks/months.Each party must contact the mediation serviceseparately to book themselves in. There arecurrently 16 offices located around Ireland,some part-time and some full-time. For more


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information, check the website atwww.legalaidboard.ie

Apart from the Family Mediation Service, youcan avail of mediation on a private basiswhere you pay by the hour. Some solicitorsand barristers have qualified as mediators andthere links on the Law Society and Law Librarywebsites. However, mediators do not have tobe lawyers and there are a number ofmediation bodies.

Northside Community Law Centre (NCLC) Tel: 01 848 2988 Web: www.nclc.ie and

Ballymun Community Law Centre (BCLC) – Tel: 01 862 5805 Web: www.bclc.ieboth provide a free family mediation service.

2. Collaborative Law

This is an alternative method of resolution offamily law disputes including separation anddivorce. The process takes place outside acourt setting.

You and your partner work with your ownspecially trained collaborative lawyers and tryto resolve the various issues through face-to-face meetings. Once issues are agreed thelawyers can draft a binding agreement. If theprocess breaks down neither of the lawyers


can act for you in any contested courtproceedings.

The Legal Aid Board has published aninformation leaflet on Collaborative Practicewhich can be downloaded from their website.

What is the difference betweenMediation and Collaborative Law?

There are a number of differences but themain one is that in Collaborative Law yourlawyer is at your side at all times during theprocess and if the process has been successfulyou have a legally binding agreement.

In mediation the agreement reached betweenthe parties is not legally binding. When themediation has concluded the parties areadvised by the mediator to go to theirsolicitors with the mediated agreement forlegal advice. Mediation can be the first step toattaining a Legal Separation or Divorce.

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Options for formal separation

1. Separation agreement

A separation agreement is a legally bindingwritten contract between spouses, known as aDeed of Separation, setting out their futurerights and duties. The agreement should setout the living and management arrangementsfor the children.

The effect of the agreement is that it is legallyenforceable. The courts have the power tomake the agreement a 'rule of court' ifrequested. This means that all of the agreedterms (where covered by appropriatelegislation) can afterwards be legally enforcedby applying to the court.

Unlike mediation, each party should havetheir own solicitor to ensure they receiveindependent legal advice when theagreement is being set out.

Following a separation agreement, neitherspouse is legally free to marry another person.If it operates successfully, however, it can laterform the basis of a divorce application.

The agreement will include a number ofterms, depending on the circumstances of theindividual couple, and include all detailsinvolving what duties each party will havenow they are no longer a married couple:

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These include:

l Provision for the family home (if owned)or any property – whether it will be sold orwhich spouse will remain there and underwhat conditions.

l Provision for any bills – household ormedical – and mortgages.

l Provision for children in terms of money,education and access. All children must beprovided for until they reach the age of 18or, if in full-time education, 23. In makingany agreement, parents must consider thebest interests of the child despite the factthat their own relationship is nowchanged.

l Provisions for maintenance.

l Adjustment around succession rights.

l Indemnities from the other spouse's debts.

l Arrangements for family pets and access toshared animals, if any.

A separation agreement cannot deal withpension rights and generally it is necessary toget a court order for this. This is becausetrustees of pension schemes are not obligedto honour a separation agreement term thatalters pension rights.


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Completion of the separation deed dependson both spouses agreeing to all of its terms.The parties and/or their solicitors can continueto negotiate until agreement is reached.

In general, it is easier and less costly for allparties if they can reach an agreement onseparation. However, if they cannot agreeand all negotiations fail, or where the matteris very complex and involves pensionadjustment orders, a judicial separation maybe necessary.

Judicial Separation

A judicial separation case is heardin the Circuit or High Court by ajudge. It is sought generallywhere a couple fail to reach anagreement, where there are morecomplex financial matters orwhere a Pension AdjustmentOrder is needed.

When the Court is satisfied to grant a Decreeof Judicial Separation, it can make variousancillary orders in relation to various financialand property matters, including Ordersrelating to the family home, maintenance andpensions. When deciding to make any suchOrders, the Court is obliged to endeavour toensure that proper provision is made for each

JudicialSeparationand FamilyLaw ReformAct 1989

Family Law Act 1995


spouse and for any dependent member of thefamily. In deciding whether to make any suchOrders, the Court will take into considerationthe various factors set out in Section 16 of theFamily Law Act 1995, which include thefollowing:

a) The income and capacity, property andother financial resources of the spouses;

b) The financial needs, obligations andresponsibilities of each of the spouses;

c) The standard of living enjoyed by thefamily concerned before theproceedings were instituted or beforethe spouses separated;

d) The age of each of the spouses and thelength of time during which thespouses lived together;

e) Any physical or mental disability ofeither of the spouses;

f) The contribution which each of thespouses has made or is likely in theforeseeable future to make to thewelfare of the family (includingfinancial and non-financialcontributions);

g) Any income or benefits to which eitherof the spouses is entitled;

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h) The conduct of each of the spouses, ifthat conduct is such that in the opinionof the Court, it would in allcircumstances of the case be unjust todisregard it (misconduct is only takeninto consideration by the Court if themisconduct is considered to be grossand obvious; (in other words, themisconduct has to be of an extremelyserious nature);

i) The accommodation needs of either ofthe spouses;

j) The value to each of the spouses of anybenefit which by reason of the Decreeof Judicial Separation that spouse willforfeit (such as a benefit under apension scheme);

k) The rights of any person other than thespouses.

A couple may not seek a judicial separationwhen they already have a separationagreement in force.

To apply for a judicial separation, one of thefollowing six grounds must be present:

1. The respondent spouse has committedadultery.

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2. The respondent spouse has behaved insuch a way that it would beunreasonable to expect the otherspouse to continue to live with him/her.

3. The respondent spouse has desertedthe other for at least one year at thetime of separation application.

4. The spouses have lived apart from oneanother for one year up to the time ofthe separation application and bothspouses agree to the separation decreebeing granted.

5. The spouses have lived apart for atleast three years up to the time of theapplication for a separation (thisapplies whether or not one or bothspouses agree to the separation).

6. The court has decided that a normalmarital relationship has not existedbetween the spouses for at least oneyear before the date of application forseparation.

The most frequent reason given to the Courtis ground 6. This has the benefit of not placingthe blame on one party more than on theother. An application is made to the CircuitCourt, normally through a solicitor, and thesame solicitor cannot act for both parties.

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You are allowed to represent yourself incourt – no one is legally required to have asolicitor – but you are advised to berepresented by a lawyer as there are manycomplex matters. If you cannot afford asolicitor, you can apply for civil legal aid (seebelow) and, if granted, a solicitor will beappointed to represent you.

The solicitor will discuss whether any of thegrounds for separation exist and will thenadvise you with regard to counselling ormediation services available to couples. Thesolicitor will also discuss the possibility of aseparation agreement.

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What do I need to apply for JudicialSeparation?

To apply for a Judicial Separation, thefollowing documents must be prepared by theapplicant and submitted to the office of theCircuit Family Court:

1. A Family Law Civil Bill. This documentsets out details relating to you andyour spouse, when and where youwere married, what each of you do fora living, where each of you live, howlong you have lived apart and thenames and birthdates of your children(if any).

2. A sworn Affidavit of Means which is adocument that lists your assets, income,debts and/ or liabilities, all monthlyoutgoings and pension entitlements.

3. A sworn Affidavit of Welfare if thereare any dependent children. Thisdocument sets out details of thechildren such as dates of birth, whereand with whom they live, detailsregarding their education, health,childcare arrangements and anymaintenance and access arrangementsalready in place.

4. A document that certifies you havebeen advised of the alternatives tojudicial separation. This is signed by a


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solicitor, and certifies that you havediscussed the possibilities ofreconciliation, mediation andseparation agreements.

Copies of the relevant forms are availablefrom your nearest Circuit Court Office. Someof these forms are also available on the CourtsService website: www.courts.ie under Rulesand Fees > Circuit Court > Schedules >Schedule B - Forms. The court rules thatgovern family law proceedings can also beviewed on the Courts Service website under:Court Rules > Circuit Court Rules > Index ofRules> Order 59.

What should the Respondent do?

When the respondent is served with a FamilyLaw Civil Bill, he/she should lodge anAppearance. This is a document that indicatesto the Applicant and the Court that therespondent has been served with theproceedings. The respondent is then allowedsome time to file (register papers with thecourt) his or her Defence and Counter-Claim,Affidavit of Means and Affidavit of Welfare.


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What happens after the documents are all filed?

Once all documents are filed by the applicantand respondent, or earlier if both partiesagree, the County Registrar (a Court officialwith powers similar but much more limited tothose of a Judge) will convene a meeting or(meetings) with the people involved and theirlawyers, if they choose to be represented.These meetings are called case progressionhearings, and they happen in a court roomthough with much less formality than a courthearing. At these hearings, the CountyRegistrar will make sure that both sidesidentify the issues in dispute and are preparedfor hearing.

What happens at the case hearing?

When the case is ready, it will be listed beforea judge who will hear both sides and ensurethat the legal requirements are met. If bothparties agree at any time during this processto settle the case, then it can be very quicklybrought before a judge who must be satisfiedwith the settlement agreed.

When a Decree of Judicial Separation isgranted, Ancillary Orders are usually made bythe judge on issues such as:


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l Maintenance

l Access to and custody of children

l Property adjustments

l Sale of property

l Extinguishing of succession rights

l Pensions

l Life cover.

Interim Orders are available to parties seekinga judicial separation. These are orders thatwill be in place up until the hearing of theapplication. As there can be long delays ingetting the full case heard in the CircuitCourt, these orders are important. They caninclude:

l A Protection Order

l An Interim Barring Order

l A Custody Order

l A Maintenance Order

l An Order freezing an asset, such as a lumpsum termination payment from anemployer.


If it becomes clear at a later stage thatsignificant information was deliberatelywithheld by either party, then any order canbe adjusted so long as the court is satisfied itwould be fair to do so in the circumstances.(See Domestic Violence, Family Law & Childrenand Maintenance leaflets for moreinformation).

The cost for these procedures can be high,depending on a number of issues, includingthe attitude taken by both parties, any expertevidence needed and whether the case goesto court. You are entitled to get as accuratean estimate as possible of the costs involvedfrom your solicitor.

The family home

A family home refers to adwelling in which a marriedcouple normally lives. Protectionis provided for the family home ofa married couple in Irish law, inthat one spouse cannot sell,mortgage, lease or transfer thefamily home without the consent ofthe other spouse.

This legal protection applies even where thefamily home is registered in the name of onespouse only. It must be noted that the courtcan dispense with the need for consent whereit considers that consent is being unreason -ably withheld. A spouse may also apply to the

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FamilyHomeProtectionAct 1976 asamended byFamily LawAct 1995


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court to stop the other spouse/civil partnerfrom doing anything that might damage hisor her interest in the family home.

The in camera rule

All cases in the Family Law Courts in Irelandare heard in camera (in private). Therefore,members of the general public are notpermitted to enter the court. The in-camera

rule has changed recently to allow the mediato have limited access to family law hearingsand to have limited rights to report on theproceedings.


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Legal Aid

You may be eligible for legal aid if you are aperson of moderate means. To qualify for legalaid in civil cases your disposable income and assets must be below a certain limit, there mustbe merit to the case and there must be noother satisfactory way of resolving the problem.After approval, the Legal Aid Board providesyou with the services of a solicitor and, ifnecessary, a barrister. You can apply for legalaid for more than one matter at a time. TheBoard’s offices are called Law Centres and arelocated around the country. For the location ofyour nearest Law Centre, call 1890 615 200.

All those who are granted legal advice and/orlegal aid must pay a fee called a contributionto the Board. The minimum contribution is€30 for legal advice and €130 for legal aid.Law centre staff will advise what a person’sactual contribution will be as each person isassessed on an individual basis.

Before you qualify for legal aid, you must firstsatisfy a means test. Your disposable incomemust be less than €18,000 and your disposablecapital cannot be more than €100,000.

If you are in receipt of allowances, they willbe taken into account and they are deductiblewhen calculating disposable income. Themaximum allowance on childcare facilities ifyou are working is €6,000 per child per yearand the maximum allowance on accom moda -tion costs (e.g. rent) is €8,000 per year. The


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Public Service Pension Related Levy and theUniversal Social Charge are now also con sider -ed and are deductible for the purposes ofassessment.

The value of an applicant’s home and itsnormal contents are excluded when assessingthe value of his/her capital resources(property). If your capital resources exceed€4,000, you must complete a Statement ofCapital.

For further details on financial eligibilityrequirements or for details of otherallowances, contact your local Law Centre. Afull list is available at www.legalaidboard.ie.FLAC has prepared a guide to the state legalaid system which you can download atbit.ly/CLAflacsheet.

Need more information?

Legal information leaflets are also available

from FLAC on a variety of other areas of

law. They are free to download as PDFs

from the FLAC website or in print from your

local FLAC centre or Citizens Information

Centre.


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FLAC Mission Statement

FLAC (Free Legal Advice Centres) is a human rightsorganisation which exists to promote

equal access to justice for all.

While every effort has been made to ensure theaccuracy of this leaflet, it is provided for generallegal information only and is not intended as asubstitute for legal advice. The information itcontains is correct as of date of publication. FLACdoes not accept any legal liability for the contentsof this leaflet. People with specific legal problemsshould consult a solicitor.

FLAC is very grateful to Eugene Davy, solicitor, whofinalised this leaflet and Susan Webster, solicitor,who assisted with earlier drafts.

FLAC offers free, confidential basic legal informationvia its lo-call telephone information line at 1890350 250 and one-to-one legal advice through itsnetwork of voluntary advice centres countrywide –www.flac.ie/help

This publication was supportedand part-funded by the Citizens Information Board

© FLAC – Free Legal Advice Centres, July 2014

LoCall: 1890 350 250 | www.flac.ie

@flacireland fb.me/flacireland

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separation - flac.ie · flac legal separation v2_layout 1 27/06/2014 15:05 page 11. you are allowed...

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