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Why couples sought Separation Agreement then divorce in Ireland?

27th June 2012
By Clark_Taylor in Family Law
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In marital breakdown, the husband and wife have to make the most serious decisions for themselves and their children at a time when they are most unable to do so. The number of divorced people in Ireland has doubled in the last 10 years – and the figure is rising.

Separation agreements help in situations where couples are reluctant to call end to their union but due to high cost of divorce, they opt for separation. Another reason to opt for separation agreement is that Irish law consider divorce only if the couple is separated for a period of 4 years. These agreements allows parties to live apart from each other but does not entitle them to remarry. Main idea is to amicably resolve major responsibilities between the parties along with distribution of assets and child custody related issues. A mediator can also be hired in the process to help formulate a mechanism for child custody and maintenance. In case of mutual agreement a formal deed of separation can be formulated between the parties even without the help of a mediator.

In order to get a Judicial Separation both parties must have lived apart for a minimum of one year and the court must be satisfied that a normal relationship has not existed between the spouses for that period prior to the application. Court makes sure adequate provision been made for the welfare and financial upkeep of the children prior to ordering the Judicial Separation.

Is the agreement legally binding?

A separation agreement is a legally enforceable contract. The terms of agreement are usually reached either through mediation or negotiation through solicitors. If agreement can be reached reasonably quickly between the parties and a separation agreement drawn up, it is cheaper and less stressful than taking a court case. Many couples formalize their separation in this way under “Maintenance of Spouses and Children Act, 1976 section 8”. Judicial separation proceedings commence only if the parties cannot agree terms or, if court orders are required to provide for pension entitlements.  

Division of the Assets for separation deed

Court considers magnitude of the assets held by both parties in order to decide fair and equitable division of these. Assets comprise all the worldly goods owned by the couple collectively or individually and including

  • The family home.

  • Family business or farm.

  • Professional practice.

  • Any vacation or investment properties.

  • Share portfolios.

  • Pensions/pension funds/ PRSA/, life insurance-linked investments, SSIAs.

  • Racehorses etc.

Court's first priority is provision of care and needs of any dependent children along with the welfare of the separating spouses. The separating parties' needs and means are assessed by the Court and taken into account.

How to make a separation agreement a rule of court

You must lodge an application in the form of a notice of motion in the relevant Circuit Court office together with the separation agreement and two copies of each document. The office will give you a date for court. You must serve a copy of the notice of motion on the respondent by registered prepaid post or personal service. You must complete an affidavit of service and swear it before a commissioner for oaths. You should bring the affidavit to court with you on the day.

Deed of Separation

The actual document drawn up and signed by both parties, when they reach agreement, is often called a Deed of Separation and is a legally binding written contract. The main issues dealt with in a separation agreement are as follows:

  • An agreement to live apart.

  • Agreed arrangements in relation to custody and access to children.

  • The occupation and ownership of the family/shared home and any other property.

  • Maintenance and any lump sum payments.

  • Indemnity from the debts of the other spouse/civil partner.

  • Taxation.

  • Succession rights.

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