DIY Judicial Separation

Q. Do I need a Judicial Separation in order to avail of court assistance?

A. No, you do not have to initiate Judicial Separation proceedings to avail of court assistance in sorting out disagreements on custody, maintenance and occupation of the family home. There are a range of court orders available through the District Court.

Custody and Access to children can be addressed through an application under the Guardianship of Infants Act, 1964.

Barring Orders, Safety Orders and Protection Orders can be availed of under the Domestic Violence Act, 1996.

Maintenance can be addressed under the Family Law (Maintenance of Spouses and Children) Act, 1976.

Issues in relation to the Family Home can be addressed under the Family Home Protection Act 1976 and the Married Women’s Status Act, 1957. (Section 36 of the Family Law Act, 1995 allows the Circuit Court to determine in a summary manner any question arising between spouses as to the title to or possession of any property).

In some cases where there is only one issue of disagreement, for example maintenance, a spouse could simplify their Judicial Separation application by applying to the District Court for a Maintenance Order first and then incorporating the Order into their application for Judicial Separation. This way a contentious issue may be removed from the Circuit Court and lessen the need for a solicitor and barrister in Judicial Separation proceedings and thereby reduce the costs involved.

Q: How does your service work?

A. On receipt of client’s payment we will send, by return post, a questionnaire designed to obtain the necessary information to make a successful application to the court. The questionnaire is easy to follow with notes on its completion so that the information can be exchanged hassle free and from the comfort of ones own home. We are available by telephone, mail or email to answer any queries in relation to the information sought. When we receive the completed questionnaire we will check all information and will make contact with our client if necessary. When we are satisfied with the information given us we will complete the necessary paperwork and have it with our client within five working days. We will include a Step By Step Guide that explains the documents and court procedure and takes you through it step by step. We provide a full back up service until you complete the procedure and if you do encounter unforeseen problems our service will still be there giving assistance until you get your judicial separation.

Q. Can DIY Judicial Separation draw up all the documents required?

A. Yes, we can draw up a complete set of Judicial Separation papers which will allow our client’s make their own application to the Courts for a Judicial Separation and have their case heard within 1-3 months of their initial application. The paperwork provided covers all eventualities including consent, no response or a contested case.

Q. How do you apply for a Judicial Separation?

A. A Judicial Separation application is commenced by the serving of court stamped documents on your spouse. The documents will contain Family Law Civil Bills, Affidavits of Means and Affidavits of Welfare if there are dependent children of the family. You must provide proof of the sending or serving of all documents to the court through sworn affidavit. Other documents that are required and the court procedure to follow will depend on the response, if any, from your spouse.

Q. Can I remarry after the granting of a Judicial Separation?

A. No, a marriage is not dissolved by the granting of a decree of Judicial Separation. To remarry you must first obtain a decree of divorce.

Q. Using your services, how long will the procedure take?

A. Once you return the completed questionnaire with payment we will send you the Judicial Separation documents within 5 working days together with our detailed Step By Step Guide. If you start the procedure without delay and your spouse responds positively within 10 days you should be on a list for the next Circuit Court Family Law hearings within 3 weeks of instituting proceedings. To our knowledge the shortest time period for someone who used our service in the past year to obtain their Judicial Separation was four weeks. However, the time it takes depends on your own attentiveness to detail and whether your spouse responds and the next available court date for the hearing.

Q. Why does it take years to get a Judicial Separation with the legal profession?

A. In regard to an application for Judicial Separation it can take the legal profession years to get you into court. This fact can be evidenced by Court’s Record number for the serving of Civil Bills which is displayed on the listings for the Court Hearing dates. The conventional practice in the Irish legal system is for legal proceedings to be instigated by one party against the other after a lengthily period of time without any meaningful negotiation of the issues. Then too much time is spent swapping allegations and accusations and not enough attention is given in many cases to the terms that might produce a settlement. And when civil bills are finally served it is a rarity that the Respondent’s solicitor files a Defence within the 20 days given by court rules. The solicitors give each other permission for the filing of late Appearance and late Defence and their client’s time is certainly in many cases disregarded. And when the day in court finally arrives and to ensure that the case will be heard it may be necessary to re-label the case one of ‘consent’ rather than contested. In which case “Consent Orders” are hurriedly negotiated at “the steps of the court” adding to the stress on the parties.

Q. If I apply for a Judicial Separation will I have to go through the whole procedure again in order to get a divorce?

A. When applying for a decree of Judicial Separation on most grounds the spouses must have lived apart from one another for a continuous period of at least one year immediately preceding the date of the application. If a couple were separated over one year when approaching a solicitor in regard to a decree of Judicial Separation and a solicitor were to take two years in getting you to court (good average) you would be over three years separated by the time you received your decree. However, less than a year later, any one of the spouses are able to apply for divorce as you must be four years separated to apply for a divorce in the State. So it is possible, if one of the spouses subsequently desired a divorce, for the legal profession to get two ‘bites of the cherry’ so to speak, in resolving your matrimonial difficulties within a short period of time and in the Circuit Court.

Q. What do the solicitors charge?

A. The solicitor’s fees for a Judicial Separation vary depending on the level of agreement at the outset and the value of assets but generally they are charging between €5,000 and €30,000 each per spouse depending on the level of acrimony that exists or is made to exist by the time the process arrives in court and of course the value of a couples assets.

Q: Do I need to have a Separation Agreement or Judicial Separation before applying for divorce?

A. No, you are not required to have a Judicial Separation before applying for a divorce.

Q: What happens if the Respondent spouse fails to reply?

A. The Respondent spouse has three choices. Firstly, he/she can consent in which case the application and remaining procedures take a certain course. Secondly, he/she can ignore the documentation in which case you can proceed but you will need to serve a 14 Day Warning Notice, Affidavit of Service of such notice and, depending on court practice in your local court area follow the guidelines. Thirdly, your spouse can contest the Judicial Separation on particular grounds, in which case they will be required to serve on you documentation including a Defence and Counterclaim outlining the grounds under which they are contesting.

Q. Can my spouse object to the granting of a Judicial Separation?

A. Your spouse cannot prevent you obtaining a Judicial Separation but the courts can, if they are not satisfied with the grounds of your Judicial Separation application or that proper provision exists or will be made to exist for the spouses and/or any dependent children.

Q. Can either spouse apply for a Judicial Separation?

A. Either spouse can apply for a Decree of Judicial Separation - the person applying is the Applicant and the other spouse is referred to as the Respondent.

Q. When can Judicial Separation be granted?

A. A decree of Judicial Separation can be granted when the court is satisfied that you have proved that one of the following grounds exist

• that the respondent has committed adultery
• that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent
• that there has been desertion by the respondent of the applicant for a continuous period of at least one year immediately preceding the date of the application
• that the spouses have lived apart from one another 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
• 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
• 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 (standard or most used ground)
• Such provision as the court considers proper having regard to the circumstances exists or will be made for the spouse and any dependent members of the family.

Q. What matters should I consider before applying for Judicial Separation?

A. Your decision should give consideration to the level of conflict that could arise especially in relation to contentious issues that have not been settled, like the family home, maintenance, custody, property, assets, pensions etc. If the above matters have all been settled or terms agreed for inclusion in your application, the information you supplied is correct and your documentation and procedure is in order then you should have little difficulty. However, the completion of your documentation and procedure even with consent is no guarantee that you will obtain a Judicial Separation. The court must be satisfied that there is proper provision for the spouses and any dependent children.

Q. What if my spouse lives abroad in another EU country?

A. If your spouse is living abroad in another EU country you can still obtain your Judicial Separation by following our procedure, provided you know where your spouse lives.

Q. What if my spouse is living outside the EU? 

A. A separate application and attendance with the County Registrar must be made to seek permission to serve the Family Law Civil Bill outside the EU to a known address. If difficulties arise with service out of the country then the Applicant will have to apply for an order for direction as to service of the Family Law Civil Bill. We can provide the necessary documentation.

Q. Can I continue to use my married name after Judicial Separation?

A. Wives may take their husband’s names on marriage or retain their former names.

 Q. What is a Section 5 Certificate?

A. Under Section 5 of the Judicial Separation and Family Law Reform Act, 1989 any applicant, who is represented by a solicitor, must receive from the solicitor a certificate stating that the solicitor has complied with the section and discussed the possibility of reconciliation between the spouses, has given the names of qualified persons who could help effect a reconciliation between the spouses who have become estranged, including the names and addresses of mediators, and discussed the possibility of engaging in mediation to help effect a Separation Agreement. The certificate must also state that the solicitor has discussed with the Applicant the possibility of effecting a Separation by the negotiation and conclusion of a Separation Deed or written Separation Agreement with the Respondent spouse.

The Judicial Separation Act is silent on how lay litigants (DIY Applicants) are to be made aware of the above information.

Q. What can we do if we are unable to agree terms?

A. If spouses are unable to resolve their marriage difficulties then they may engage in mediation to effect a Separation Agreement or a deed of Separation.

Q. What is mediation?

A. Mediation is a process whereby use is made of a mediator or referee to help negotiate between spouses in dispute.  Mediation and the conclusion of a Separation Agreement should then be considered as an alternative to Judicial Separation where the issues of custody and parenting, maintenance, child-care, the family home, pensions, assets, debts etc. can then be sorted in an amiable way. This process can ensure that the interests of both parties and the children are satisfied. A Mediation Agreement can therefore be a first step in addressing the difficulties encountered in a marriage.

Q. Where can I obtain mediation?

A. The Department of Social Community and Family Affairs operates a free Family Mediation Service with Full Time Offices at various centres throughout the country.

Q. What are the benefits of a mediation Agreement?

A. A Mediation Agreement can be a prelude to a Separation Agreement. We would recommend that you consider this route especially if both parties are finding it difficult to agree a settlement. A free information booklet on Separation and Mediation is available from the court offices, and the Citizens Information Centres throughout the country also provide information on this subject.

Q: What if we have not sorted the Family Home?

It is possible to include your terms of agreement in relation to the Family Home, Maintenance, Custody, Access etc in your Judicial Separation application and seek court orders where necessary to ensure the settlement and enforcement of your agreed terms of settlement.

Q. What if I have reservations that my spouse will not honour an agreement on maintenance after Judicial Separation?

A. Whether your spouse fails to honour your agreement to pay maintenance based on, consent as outlined in your Judicial Separation application, a Separation Agreement, Court Orders granted under the Judicial Separation and Family Law Reform Act, 1989 or any previously attained Maintenance Order the situation is more or less the same. If your spouse fails to make provision you will have to apply to the Court to enforce the orders granted or the terms of the agreement.

Q. In what court area will the Judicial Separation application be heard?

A. The venue can be in any county where any party ordinarily resides or carries on any profession, business or occupation (Rule 4C 2 Circuit Court Rules 2001)

Q. In what court will the Judicial Separation hearing be held?

A. The Court shall be the Circuit Court unless, the market value of any land in which proceedings relate exceed €3m and either party or any person having an interest applies to transfer it to the High Court.

Q. What financial information must I give to the Court?

A. The Applicant must file an Affidavit of Means setting out details of their assets, debts, income and expenditure and pension details. The Circuit Court Rules, 2001, Rule 7 (a) declares that a Family Law Civil Bill and Affidavit of Means shall be served on the Respondent.

Q. What is the significance of providing financial information?

A. The filing of an Affidavit of Means will be a court record of a person’s financial position and can have a bearing on the Courts decision whether to grant a Judicial Separation. There must be proper provision made for the spouses and any dependent children. If circumstances were to change with either party i.e. ill health, unemployment, a win on the lottery or evidence of assets not declared etc either party can return to the court even after Judicial Separation for relief.
 
Either party can make an application to the court for an Order of Discovery and request the other to vouch any or all items referred to. Before bringing a motion for discovery the information sought shall be requested in writing voluntarily at least 14 days prior to the issuing of the motion for any relief. The disclosure of full financial information can lead the other party to seek relief but in many cases it may be sufficient to satisfy the Respondent spouse or their solicitor that the financial circumstances of the Applicant are such that proper provision is made to the best of the Applicant’s ability.

We take great care in ensuring that your Affidavit of Means is representative of your financial circumstances and will assist with expert and confidential information. If you are concerned with the disclosure of your financial circumstances we offer a consultation service by appointment.

Q. What information must I give regarding the children?

A. An Affidavit of Welfare is required in all cases where there are dependent children of the marriage and family. The court must be satisfied that proper provision is made for them and therefore require details on where and with whom the children live, who cares for them, their education, accommodation, health etc.

Q. If I get a Judicial Separation will I lose my Deserted Wife’s Allowance?

A. Deserted Wife’s Allowance, Deserted Wife’s Benefit and Lone Parent Allowance continue to be paid to those in receipt of them. Upon the granting of a Judicial Separation that is recognised in the State a deserted wife and a loan parent shall continue to be eligible to receive the allowance’s or benefit.

Q. What about the One-Parent Family Payment after Judicial Separation?

A. One-Parent Family Payment is payable to a ‘qualified parent’ with whom a ‘qualified child’ normally resides. A qualified parent whether they are a widow, widower or a separated spouse will continue to be a ‘qualified parent’ and entitled to the above payment after obtaining a decree of Judicial Separation. Similarly obtaining a Judicial Separation does not deprive a separated spouse of his or her public law entitlement to a Widow or Widowers Pension.