When a couple cannot agree the terms by which they will live separately, an application to the courts for a Decree of Judicial Separation can be made by either party. The court must be satisfied that:
- The grounds for the application exist.
- The couple has been advised about counseling and mediation.
- Proper provision has been made for the welfare of any dependants.
- If it is satisfied, the court will grant a Decree of Judicial Separation. The Decree confirms that the couple is no longer obliged to live together as a married couple. The court may also make orders in relation to custody and access to children, the payment of maintenance and lump sums, the transfer of property, the extinguishment of succession rights, etc.
An application for a Judicial Separation is made either in the Circuit Court or the High Court. As in all family law matters, cases are heard in private and the public is not admitted to the courtroom.
An application for a Judicial Separation must be based on one of the following six grounds:
- One party has committed adultery
- One party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them
- One party has deserted the other for at least one year at the time of the application
- The parties have lived apart from one another for one year up to the time of the application and both parties agree to the decree being granted
- The parties have lived apart from one another for at least three years at the time of the application for the decree (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.
In both judicial separation and divorce the court is given powers to make orders for ancillary reliefs in respect of maintenance, pensions, property, financial compensation orders or succession rights. In making such orders the court shall have regard to the following factors:
- 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 instituted or before the spouses separated.
- The age of each of the spouses 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.
- The earning capacity of each of the spouses.
- 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.
- The value to each spouse of any particular benefit.
- The rights of any person other than the spouses but including a person to whom either spouse is remarried.