DIY Judicial Separation

 Another way for a separated couple to formally declare their separation and agree terms in relation to the way they intend to live after separation is to apply for a decree of judicial separation through the Courts. The Judicial Separation and Family Law Reform Act was introduced here in the State in 1989 and the granting of a decree under the Act releases the spouses from the marriage contract and their duty to cohabit or live together. The parties still remain husband and wife and they are not allowed to remarry.

Not all couples applying for a Judicial Separation before a Court are in disagreement and many couples choose this route or the route is chosen for them by their solicitors so that the terms of their agreement can be overseen by the Court. It may be that there is a transfer of property or a pension right or other benefit from one spouse to the other and it is felt that their actions should be recorded and governed by the Circuit Court. The court then is empowered to decide on the application for the order and has the jurisdiction to enforce it.

So if there is consent and agreement on the terms of settlement these terms can be made into court orders or “Consent Orders” as they are referred to. Once positive orders are made then they can be enforced by the court if there is a breach of any order. However, the terms must be expressed in language that leaves no ambiguity and the orders will not provide the same flexibility as is given with a separation agreement where more detail on custody and access and future aspirations can be inserted.

In the majority of cases spouses who choose the route of a decree of Judicial Separation and court orders do so because they are unable to agree issues involving the custody and care of children, maintenance for the children and/or spouse, the family home, property, pension rights, etc and they seek a Court Order to enforce their rights and demands for proper provision. However, there is no court procedural objection or obstacle preventing spouses from agreeing to the institution of consensual judicial separation proceedings. Judicial separation proceedings on consent are rarely initiated by the legal profession because of the adversarial justice system practiced. But for various reasons the proceedings are compromised “at the door of the court” and “consent orders” are sought. (for more information see our page on Irish Family Law Justice System).

By going the route of Judicial Separation spouses are given access through the Family Law Act, 1995 to a wide variety of remedies including proper provision in the form of Maintenance Orders, Property Adjustment Orders, Pension Adjustment Orders and who will occupy or possess the family home. Spouses may be forced down this route by the inability of either party or them both to accept a reduction in their standard of living and thereby agree terms.

As stated by Mr. Justice Diarmuid B O'Donovan in the High Court case O'R. (C.) v O'R. (M) [2000]

‘At the end of the day, however, the parties must appreciate that it is one of the realities of life that a couple living apart can never live as comfortable as they could if living together on the same income and that, inevitably, when a marriage breaks up, each former partner has to adjust to a lower living standard to what they had previously enjoyed and, perhaps, aspired to.'

However a contested Judicial Separation Circuit Court case will involve two sets of solicitors and barristers and not only will it be extremely costly, time consuming and emotive but the results may not be what either couple bargained for and could lead to a lifetime of acrimony between the parties especially if the legal teams engage in tactics that are intended to demonstrate the worst behaviour of both spouses. And if money is the main issue then the cost of the litigation itself may have been equivalent to the sum that could have settled the disagreement in the first place.

A procedure that is becoming more commonplace and one that is highly recommended by us is for terms of settlement to be drawn up and included in an application for judicial separation. The terms like custody, the transfer of the family home, maintenance and pensions for instance are converted into consent court orders and other terms like detailed access to children, decisions on the children's education and health and future aspirations are made a “rule of court”. This approach retains the flexibility of a separation agreement while allowing the court to oversee and approve the terms of agreement . The court orders can underpin the settlement by giving it legal status and invoke the protection of the court towards future enforcement of the terms agreed if necessary.