If it is not possible for the parties to agree the terms of their separation it is often necessary to make an application to the courts for a Decree of Judicial Separation.
A Decree of Judicial Separation application can be made by either party.
The court has power to grant a decree of Judicial Separation on a number of grounds including;
- unreasonable behaviour
- desertion (either party has deserted the other for at least one year at the time of the application)
- existing separation or
- where a normal marital relationship has not existed for at least one year prior to the application
An applicant must prove their case to the court on the balance of probabilities.
On granting a judicial separation the court must make proper provision for the spouses and any dependant children and can make a variety of orders in relation to custody of dependent children, the family home, maintenance and financial provision, among other matters. A decree of Judicial Separation can be sought in the Circuit Court or the High Court depending on the financial circumstances of the parties.
This is a time consuming process and it could take two years before the case is ready for a full hearing. There may be many interim applications that have to be made along the way and there will be a need to exchange full financial documentation so that both sides know exactly what the other persons financial affairs are like. Ultimately if the case goes as far as a full hearing the Judge will decide the terms on which the parties will separate and the Judge will make relevant orders on matters such as property, custody, access and maintenance and pensions.
The court must also be satisfied that:
- The parties have met the appropriate statutory criteria to be entitled to bring the application
- The parties have had an opportunity to be legally advised and that they have been advised of the possibility of resolving their differences through either counselling or mediation
- Appropriate provision has been made for all parties including any dependent children
Once all of these matters are decided, the court will grant a Decree of Judicial Separation. The granting of the Decree of Judicial Separation formalises the fact that the couple is no longer obliged to live together as a married couple.
The application for a Judicial Separation is most usually made in the Circuit Court, and can be made either in the Circuit Court area where either of the parties lives or carries on a business. An application can sometimes be made in the High Court. As in all family law matters, cases are heard in private and the public is not admitted to the courtroom.
The court has the authority to make orders for ancillary reliefs in respect of the various issues that are being contested. These are usually some or all of the following; maintenance, pensions, property, financial compensation orders or succession rights, custody and access. The court must take into account a number of factors when it is considering making any such ancillary orders. These include considering:
- The actual and potential financial resources i.e. the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future.
- The financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of remarriage or otherwise)
- The standard of living enjoyed by the family before the proceedings were commenced or before the spouses separated.
- Each party’s age and the length of time the spouses have lived together.
- Any physical or mental disability of either of the spouses.
- The contributions which each of the spouses has made or is likely to make in the foreseeable future to the welfare of the family.
- Any income or benefits to which each of the spouses is entitled under statute.
- The conduct of each of the spouses.
- The accommodation needs of either spouse.