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Separation

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Separation

The breakdown of a marriage, civil partnership or other life relationship can be traumatic and difficult. You should firstly be sure that the relationship is at an end and consider if personal and/or couple counselling can help reconciliation.

If the relationship has irretrievably broken down and if there is no reasonable prospect of reconciliation then the process of separation can begin. The person who makes the decision to separate is often in a different emotional space so understanding where your spouse/partner is emotionally is very important.

The process by which a couple separate can have consequences for their children and the good news is that there is plenty of help available. Please see section on children.

Couples if they agree on the terms on which they are to live separately and apart from each other, can put these terms into a legal contract called a Deed of Separation or Separation Agreement.

The processes by which couples can agree the terms of their separation and how they will parent their children are mediation, collaborative practice and solicitor negotiation.

If a couple cannot agree the terms either can apply to the court for a judicial separation. The Court will decide the issues including:

  • maintenance, both by periodic payments and lump sum payment/s
  • pension adjustments orders
  • property transfer orders
  • orders in relationabout the family home including whether one party should stay there for a period of time or whether it should be sold
  • orders in relation to life assurance and what happens on death of the spouses

The court will take into account all the circumstances of the case. A number of statutory factors such as:

  • Income, earning capacity and financial resources of both,
  • Financial needs and obligations of both,
  • Age, length of marriage, standard of living, and accommodation needs
  • Any physical and mental disability,
  • Contributions made by one to family life and effect on earning capacity of that commitment,
  • The value of any benefit forfeit for example pension benefits
  • Conduct but only if it is gross and unfair to disregard it.

Our knowledge of the law and court decisions allow us guide our clients on the likely outcome of their case. This helps avoid applying to court or having the court determine the case.

Legal Separation

Currently it is not possible for couples to divorce unless they have been living separate and apart from each other for four out of the previous five years. Most couples, however, need to sort out their affairs immediately upon separation and cannot wait four years to do so. Such couples therefore seek a legal separation and there are two ways to achieve this – by means of a Deed of Separation or a Judicial Separation.

Deed of Separation

A couple can agree the terms of their separation, either through mediation with legal advice or through their respective solicitors. If agreement can be reached then the terms can be reduced to writing in a Deed of Separation. A Deed of Separation is suitable for couples who can reach agreement quickly and who have relatively straightforward financial circumstances. It incurs lower costs than litigation and can be more holistic in terms of the future relationship between the parties. It is important to note however that a Deed of Separation is not suitable if there is a pension to be split as the Trustees of a pension scheme cannot be bound by the terms of a Deed of Separation.

Judicial Separation

In many separations it is not appropriate to enter into a Deed of Separation. For example, it may be that the couple cannot agree the terms on which they should separate or one party may need to issue proceedings in order to obtain interim orders for maintenance, access to children etc. It may also be that one party wants to progress a separation and the other party does not – in such circumstances the only way to finalise a legal separation is to issue Judicial Separation proceedings. Just because proceedings are issued does not mean that the case will end up in court and in fact the vast majority of such cases are settled in advance of a court hearing. Judicial Separations can be granted by the Circuit Family Court or the High Court. The vast majority of Judicial Separations are granted by the Circuit Family Court and usually only “big money” cases are heard by the High Court or cases that have to be heard in the High Court for technical legal reasons. The Court can grant a wide range of Orders covering all aspects of a separation, to include Orders for the sale or transfer of property, maintenance and lump sum payments for a spouse or children, access Orders, and Orders splitting pensions.

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