DIY Judicial Separation

Section 2 of the 1989 Act specifies six grounds whereby an application by a spouse for a decree of judicial separation from the other spouse may be made to the courts. Section 3 empowers the court to grant a decree if it is satisfied that any of the grounds have been proved on the balance of probabilities.

Section 3 also lays down a condition that a decree cannot be granted unless the court is satisfied that where there are any dependent children of the family provision has been made for them or the court intends by Order upon the granting of the decree to make such provision.

The definition of “dependent child of the family” contained in Part II of the 1989 Act has now been replaced by a definition contained in Part I of the Family Law Act, 1995 which refers to “dependent member of the family”. The full text of the definition is as follows:

“dependent member of the family”, in relation to a spouse, or the spouses, concerned, means any child-

(a) of both spouses or adopted by both spouses under the Adoption Acts, 1952 to 1991, or in relation to whom both spouses are in loco parentis , or

(b) of either spouse or adopted by either spouse under those Acts or in relation to whom either spouse is in loco parentis, where the other spouse, being aware that he or she is not the parent of the child, has treated the child as a member of the family,

Who is under the age of 18 years or if the child has attained that age-

(i) is or will be or, if an order were made under this Act providing for periodical payments for the benefit of the child or for the provision of a lump sum for the child, would be receiving full-time education or instruction at any university, college, school or other educational establishment and is under the age of 23 years, or

(ii) has a mental or physical disability to such extent that it is not reasonably possible for the child to maintain himself or herself fully;

In “Consent” cases Section 2(1)(f) is a sufficient ground and indeed it has become the standard ground for seeking a judicial separation.

(f) that the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application

While the legislation has not defined what “normal marital relations” means there exists case law on this ground most notably the High Court case T.F. v Ireland [1995] where it was stated that it is not necessary to identify how or when or for what reason the marriage broke down or that the breakdown was irretrievable. What was required to prove that a normal marital relationship did not exist for a period of at least 12 months, was “the loss of an essential ingredient of the marriage”. In this case the emphasis was on “consent” the consent of either party, for without consent, “however unjust or unreasonable must destroy the fundamental relationship”. It was believed that if one spouse withdrew their consent to continue with the marriage then, however unjust or unreasonable, the marriage was over.

The Supreme Court upheld this view and confirmed that it was not necessary for the applicant to prove who was at fault for the break up of the marriage nor indeed was it necessary for the court to find either party at fault.

The other five grounds under which a decree for judicial separation can be applied for are as follows. However, we expect that anyone applying for a consensual decree will be submitting ground (f) as described above. While ground (d) is similar in nature it declares that the respondent consents to the decree being granted and therefore we cannot be sure whether this will mean that the court will accept a declaration of the applicant to that effect, a letter from the respondent spouse or that the respondent spouse will have to be in court to prove consent.

(a) that the Respondent has committed adultery

Sexual intercourse between a spouse and another person of the opposite sex, not being the other spouse, and the act being voluntary is regarded as adultery. It may not be necessary to prove that intercourse actually took place. This of course will depend on the circumstances and evidence presented.

Where the spouses have lived with each other for more than one year after it became known to the applicant that the respondent had committed adultery the applicant shall not be entitled to rely on that ground. So once the Applicant is aware of the Respondent's adultery the parties must have lived apart within twelve months of such knowledge becoming available to the Applicant for him/her to rely on the adultery as a ground for judicial separation.

(b) that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent

The behaviour here could include desertion or mental and/or physical cruelty or adultery even if the Applicant was aware of such adultery and continued to live with the Respondent for over a year. Physical cruelty and injury, the threat of physical harm or on ones health can be grounds for the granting of a decree. It may be one gross act of cruelty or personal violence that indicates other acts are likely to occur or it could be mental cruelty which makes it likely that the health of the person is threatened. Abusive language, nagging, drunkenness etc would be regarded as constituting cruelty if it affects the health of the petitioner or creates in the petitioner an apprehension of bodily injury.

(c) that there has been desertion by the respondent of the applicant

The period of desertion must be a continuous period of one year immediately preceding the date of the application. Any one or two periods of less than six months in total where the spouses resumed living together will be disregarded altogether from the calculation provided they are not living together at the time of the desertion. In other words if they are living together at the time of the desertion then desertion cannot be claimed as a ground. If a spouse has been deserted for 15 months but the spouses resumed living together for a period of say three months during the 15 month period but not at the time of the application for judicial separation then a spouse could rely on desertion as a ground.

Where the spouses have lived with each other for more than one year after it became known to the applicant that the respondent had committed adultery the applicant shall not be allowed to rely on that adultery for the purpose of (a) above, adultery, but it could be relied upon for the purpose of (b) above, behaviour.

Desertion also includes ‘constructive desertion' whereby the actions of one spouse justify the other spouse in leaving. A spouse leaving because of the other spouse adultery, abuse of children, constant treats, cruelty, habitual drunkenness or violence have been accepted as sufficient grounds for a spouse to leave and the spouse who remains and by whose actions or behaviour forces the other spouse to leave is held to be in constructive desertion. The spouse who remains is regarded as having (constructively) deserted the other spouse even though it was the other spouse who actually left the home.

(d) that the spouses have lived apart for a continuous period of at least one year immediately preceding the date of the application and the respondent consents to a decree being granted

If a spouse has been living apart for15months, for example, but the spouses resumed living together for a period of say three months during the 15 month period but not at the time of the court hearing for judicial separation then a spouse could rely on living apart as a ground and if there was consent.

(e) that the spouses have lived apart from one another for a continuous period of at least three years immediately preceding the date of the application

If a spouse has been living apart for two years, for example, but the spouses resumed living together for a period of say five months during the two year period but not at the time of the application for judicial separation then a spouse could rely on living apart as a ground and if there was consent

In application under Sections 2(1)(a) or 2(1)(b) for a decree on the grounds of adultery or cruelty can be made without having to wait a year before initiating proceedings.