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FAMILY LAW - Homepage

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Judicial separation

Related links
Pension adjustment orders
Relevant court forms

About judicial separation

When a couple cannot agree the terms by which they will live separately, either party can apply to the court for a decree of judicial separation. A decree of judicial separation removes the obligation on spouses to co-habit.

Many separating couples obtain a separation by agreement or apply to the court for a decree of judicial separation to regulate matters between them before they apply for a divorce. However, a divorce cannot be applied for until they have been living separate and apart for four out of the previous 5 years.

Can I apply for a judicial separation?

You can apply for a decree of judicial separation based on one or more of the following grounds:

  • adultery
  • one person has behaved in such a way that it would be unreasonable to expect the other person to continue to live with them
  • one person has deserted for a continuous period of at least one year at the time of the application
  • the couple have lived apart from one another for a continuous period of at least one year up to the time of the application and both parties agree to the decree being granted
  • the couple have lived apart from one another for at least three years at the time of the application for the decree (whether or not both parties agree to the decree being granted)
  • the court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of the application for the decree.

 

The last is by far the most common ground on which the decree is granted, as neither party has to be shown as being at fault.

Can other matters be dealt with at the same time?

Yes. Additional (ancillary) orders can be applied for in the process of judicial separation. They are similar to the orders that can be applied for in the process of divorce and include custody and access to children, the payment of maintenance and lump sums, the transfer of property and the extinguishment of succession rights. If a pension adjustment order is required you must secure a court order to bind the trustees of the scheme.

What is the difference between judicial separation and divorce?

The main difference in law between divorce and judicial separation is that a divorce allows both parties to remarry whereas a judicial separation does not.

Also, the court may review arrangements made in a decree of judicial separation in any application for a decree of divorce.

How to apply for a judicial separation or divorce

Proceedings in the Circuit Court are commenced by lodging an original family law civil bill and two copies in the Circuit Court office. The original is retained in the office and the copies are returned to the person making the application (the applicant) to be served on the person against whom the application is being made (the respondent).

The civil bill sets out the main points of the applicant's claim, details of the legislation under which the applicant is making his/her claim and the orders (or reliefs) being sought. The civil bill must be dated and must include the name, address and occupation of the applicant. It must be signed by the applicant's solicitor or, if the applicant does not have a solicitor, by the applicant personally.

In divorce and separation cases, the applicant must file an affidavit of means (where financial relief is sought) and an affidavit of welfare (where there are dependant children) together with a certificate to say that alternative dispute resolution has been considered as an option. Where the applicant is claiming a pension order a notice to trustees must be filed and served.

Service of proceedings

The family law civil bill, affidavits of means and welfare (as appropriate) are served by the applicant on the respondent in one of the ways allowed by the court rules, that is, by registered prepaid post, by personal service or in such other way as the court or county registrar allows. If you wish to serve documents other than by registered prepaid post or personally you must apply to the court or county registrar ex-parte (that is without informing the respondent) for permission.

Particular rules apply if you want to serve documents in another country. If the respondent lives in the European Union you can either serve your documents in accordance with the rules of service of the member state where the respondent lives or send your documents to a 'transmitting agency' in the member state where the respondent lives. The agency will arrange service of the documents. For details of transmitting agencies visit: europa.eu 

If the respondent lives outside the European Union you must apply to court, before you issue the Family Law Civil Bill, for leave to issue and serve the necessary documents outside Ireland and directions as to how you must serve them.

When you have served the civil bill you must endorse service in accordance with the Circuit Court rules and file an affidavit (called an affidavit of service) confirming that the civil bill and affidavits of means and welfare (where appropriate) have been served on the respondent. If you served documents by post you must refer to and include a postal certificate and mark it as an exhibit to the affidavit of service.

Entering an appearance

The respondent has 10 days from date of service of the civil bill to file an appearance in the Circuit Court office specified in the civil bill and to deliver a copy of the appearance to the applicant/the applicants solicitor. An appearance is a formal document indicating that the respondent intends to defend the action and to file a defence.

Lodging a defence

A further 10 day period is allowed for the respondent to file his or her defence. This must be accompanied by the respondent’s affidavits of means and welfare, if appropriate. Further time is allowed where a partyis abroad.

If the respondent does not file an appearance, the applicant can apply to the court by way of notice of motion for judgment in default of appearance – that is, ask the court to grant the orders sought without further recourse to the respondent. If there is an appearance but no defence, the applicant can apply to the court by way of motion for judgment in default of defence. In some cases the matter may be referred to case progression

If the termsof a separation have been agreed or a divorce is uncontested the parties can ask the court to ‘rule’ on the matter.

Case progression

If the respondent delivers a copy defence to the applicant and files the original with the Circuit Court office a case progression summons addressed to both the applicant and respondent/their solicitors, (if they or either of them is represented by solicitors) will be sent to both parties directing them to appear before the county registrar. The case will be listed before the county registrar not later than 70 days after the date the defence is filed for a case progression hearing. The purpose of case progression is to prepare the proceedings for trial. This reduces delay and cost and ensures that the time and other resources of the court are employed most effectively. Thereafter the matter will be listed for trial or ruling before a judge.

Other documents

For the hearing you will need, in addition to the documents previously mentioned, your State marriage certificate (a church certificate is not acceptable). Copies are available from the General Register Office phone: 1890 252 076 or www.groireland.ie.

Court orders

Details of orders made by the court are written on the court file. Litigants may obtain an official copy of an order from their Circuit Court office

Representation

You can engage a solicitor to make an application on your behalf or you can make the application yourself. You may be entitled to legal aid.

If you choose not to engage a solicitor you will need to contact the Circuit Court office in the county where you or your spouse live or carry on business. Court staff will identify the forms you need to make your application butcannot tell you what to put in the forms. You are responsible for service of your documents and you must also attend in court on the day to make your application. 

Court forms

S.I. No. 510 of 2001, Circuit Court Rules 2001

  • Form 2N: Family law civil bill
  • Form 37A: Affidavit of means
  • Form 37B: Affidavit of welfare
  • Form 37C: Notice to trustees
  • Form 37D: Certification pursuant to section 5 or section 6 of the Judicial Separation and Family Law Reform Act,1989 or section 6 or section 7 of the Family Law (Divorce) Act, 1996 (for solicitors)

 

S.I. No. 358 of 2008, Circuit Court Rules (Case Progression in Family Law Proceedings), 2008

  • Form 37L: Summons toattend case progression hearing
  • Form 37N: Case progression questionnaire

 

Relevant legislation

  • Married Women's Status Act, 1957
  • Marriages Act, 1972
  • Family Home Protection Act, 1976
  • Judicial Separation & Family Law Reform Act, 1989
  • Family Law Act, 1995
  • Family Law Divorce Act, 1996

Court rules

  • S.I. No. 510 of 2001:Circuit Court Rules, 2001 - Order 59
  • S.I. No. 312 of 2007:Circuit Court Rules (General), 2007
  • S.I. No. 358 of 2008:Circuit Court Rules (Case Progression in Family Law Proceedings), 2008
  • S.I. No. 15 of 1986:Superior Court Rules