Deed of Separation or Judicial Separation?

DEED OF SEPARATION

A deed of separation is a legally binding contract setting out the terms on which a married couple or civil partners agree that they will live separately. The deed usually contains an express agreement to live apart and deals with other issues such as agreed arrangements on custody and access to children, occupation and ownership of the family home or other property, maintenance and any lump sum payments, succession rights and other financial matters. The essence of a deed of separation is that it is an agreement. Both parties must agree to all the terms. Usually, this agreement is reached either through mediation or negotiation through solicitors. Both parties should ensure that they have independent legal advice before they agree on any terms so that they know their rights and can make decisions. Once a deed of separation has been signed it is binding on both parties and they are precluded from bringing judicial separation proceedings. The deed of separation can be made a rule of court by application to the court.

Where a couple cannot agree the terms by which they will live separately, an application for a decree of judicial separation can be made by either party to the courts. A decree of judicial separation confirms that the couple no longer have an obligation to live together.

THE GROUNDS FOR A DEED OF SEPARATION

While a deed of separation can be signed on agreement for any reason, an application for a judicial separation must be based on one of six grounds. These grounds are:

  • Adultery
  • Behaviour by one party which makes it unreasonable to expect the other spouse to continue living with them
  • Desertion by one party for a continuous period of at least one year
  • Couple have lived apart for a continuous period of at least one year and both parties agree to the decree being granted
  • Couple have lived apart for at least three years at the time of the application, 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 (this is the most common ground as neither party need to be shown to be at fault).

JUDICIAL SEPARATION

The court will only grant a decree of judicial separation where it is satisfied that the grounds for the application exist and have been proved by the applicant that the couple has been advised about counselling and mediation and that proper provision (financial or otherwise) is made for the welfare of any dependants. When granting a judicial separation, the court must make proper provision for both spouses and any dependant children. The court may also make ancillary orders in relation to custody and access to children, maintenance and lump sums, the transfer of property, extinguishment of succession rights, etc. Depending on the financial circumstances of the parties, the application can be made either in the Circuit Court or the High Court and cases will always be heard in private.

It is important to note that a Deed of Separation is a bar to Judicial Separation but not a bar to an application for a Divorce. It is also important to note that a Deed of Separation cannot change a spouses pension entitlements, even if both parties agree.

For further information or clarification in relation to the above, please feel free to email me at laura[at]brophysolicitors.ie or call (01) 6797930.

Laura Gillen

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