If it is not possible to agree the terms of a separation then it is open to either party to apply to court for a judicial separation. An application for a judicial separation can be dealt with either in the High Court or in the Circuit Court. In cases where the assets involved are substantial, it is often felt more appropriate that proceedings take place in the High Court but from a costs point of view, it is certainly substantially cheaper to have the matter dealt with in the Circuit Court.
There are six grounds for judicial separation and they are set out in section one of the Judicial Separation & Family Law Reform Act, 1989.
- The respondent (if you are the applicant, then your spouse will be the respondent) has committed adultery.
- The respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent.
- There has been desertion by the respondent for a continuous period of at least one year immediately preceding the date of the application.
- 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 divorce being granted.
- The spouses have lived apart from one another for a continuous period of at least three years immediately preceding the date of the application.
- The marriage has broken down to the extent that the court is satisfied that in all the circumstances, 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.
Most orders made for a judicial separation are under this section i.e. that a normal marital relationship has not existed between the parties for at least a year prior to the issue of proceedings. There is no specific definition of the phrase “a normal marital relationship”.
The main point to remember is that the court is not interested in attributing blame for the breakdown of the marriage. The judge only has to be satisfied that the marriage has broken down – not who was responsible for the breakdown.
The usual way that one party proves that a normal marital relationship has not existed is to prove that they have not been sharing the marital bed for over a year or that normal sexual relations have not taken place for over a year.
Most parties tend to issue proceedings once they can show that a normal marital relationship has not existed for over a year but if you can show that other party has committed adultery or has been guilty of physical or mental cruelty then you can make an application to court immediately.
Prior to the issue of judicial separation proceedings we will always discuss with you the possibility of reconciliation and we will also discuss and advise on mediation and if neither of the above is possible or has worked, then we will discuss the possibility of concluding a separation agreement and only then will we advise a client to issue legal proceedings.
As is the case in all family law proceedings, the welfare of any children is regarded as of paramount concern. The courts are not entitled to grant a decree of judicial separation unless they are satisfied that proper provision has been made for the welfare of the children.
Q. Why should I issue judicial separation proceedings rather than divorce proceedings?
A. You may not have been separated for four of the last five years and you may wish relatively permanent arrangements to be put in place for your separation rather than wait that length of time.
Q. If an order for judicial separation is made, can it be reviewed if I subsequently issue divorce proceedings?
A. Yes it can but generally speaking you will have to show that there has been some change in circumstances since the judicial separation order was made and you will have to satisfy the court that full and proper provision has not been made and that it would not therefore be fair to make an order for divorce now without varying those terms.
Q. How much will it cost and how long will it take?
A. We have dealt with judicial separation proceedings on a consent basis where our fee was €1,500 plus VAT. A fully contested case can cost from €6,000 plus VAT upwards and you generally have to take our barrister’s fees into account although we try to deal with as many cases as possible without involving a barrister.