Judicial separation

When a couple cannot agree the terms by which they will live apart, either person can apply to the courts for a 'decree of judicial separation'. The decree confirms that you no longer have to live together as a married couple. The court may also decide on issues like custody and access to children, the payment of maintenance and lump sums, the ownsership of property, succession rights, etc.

Before the granting of a judicial separation, the court must be sure that:

• The grounds for the application exist (see Grounds for judicial separation)
• The couple has been told about counselling and mediation
• Proper provision has been made for any dependants (children)

You can apply for a judicial separation in either in the Circuit Court or the High Court. As in all family law matters, cases are heard in private (also known as 'in camera) and the public is not allowed into the courtroom.

A decree of judicial separation does not give you the right to remarry. To remarry, you must get a divorce.

You can apply for a judicial separation if:

• Either you or your spouse is permanently living in Ireland, or
• Either you or your spouse have lived in Ireland for at least 1 year before making the application.

An application for a judicial separation must be based on one of the following grounds:

• You or your spouse has committed adultery.
• One of you has behaved in such a way that it would be unreasonable to expect you both to continue to live together.
• One of you has deserted (left) the other for at least 1 year at the time of the application.
• You have lived apart from one another for at least 1 year at the time of the application for the decree (whether or not both parties agree to the decree being granted) - see ‘Living apart’ below.
• The court considers that a normal marital relationship has not existed between you for at least 1 year before the date of the application (this is the most common ground on which the decree is granted, as neither party has to be shown as being at fault).

You cannot apply for a judicial separation when you already have a separation agreement in place which has been made an order of court.

Living apart

The Family Law Act 2019 provides a definition of ‘living apart’ to give certainty to the interpretation of the term in the Irish courts. A married couple who live in the same home as one another are considered to be ‘living apart’ if they are not living together as a couple in an intimate and committed relationship. The Act also states that a relationship does not stop being an intimate relationship just because the relationship is no longer sexual in nature.

The court process when applying for judicial separation is similar to applying for a divorce. When you are applying for a judicial separation you must submit 4 documents to the Circuit Court:

• An application form known as a family law civil bill (Form 2N) pdf. This document describes both you and your spouse, your occupations and where you live. It also sets out when you married, how long you have been living apart and the names and birth dates of your children.
• A sworn statement of means (Form 37A). This document sets out your financial situation. This includes your assets, your income, your debts and liabilities, and your outgoings.
• A sworn statement relating to the welfare of your children (Form 37B). This document sets out the personal details of the children of the marriage. It describes where they live and with whom. It also describes their education and training, their health, childcare arrangements and maintenance and access arrangements.
• A document certifying that you have been advised of the alternatives to judicial separation (Form 37D). This document is sworn by a solicitor and it certifies that you have discussed the options of reconciliation (getting back together), mediation and separation agreements.

You submit 3 copies of all documents to the appropriate Court office, either by post or in person. Documents cannot be submitted by email.

If the application documents are approved, the court office will issue the civil bill. This will have an official embossed seal, record number and a date stamp. The court office will return the original civil bill and a copy of any affidavits to the applicant.

Serving documents to your spouse

You must provide copies of all court documents to the other person. This is called serving and it means making them aware you have given that document to the court. It is very important that you keep any original documents.

You keep the original civil bill and a copy of the affidavits (sworn statements) for your records. You send a copy of the civil bill and all affidavits to the respondent. Photocopies are acceptable. Alternatively, your legal representative can send these.

You can serve the documents on your spouse by registered post or in person. You can also serve the documents on your spouse's solicitor if they agree. The court will ask for proof that you sent the documents.

Your spouse responds

When your spouse has received the documents, they can consent (agree) with the terms as set out in the civil bill. They can also contest (disagree) with the terms. Whatever decision the respondent makes, they must enter an appearance with the court office which acknowledges they received the civil bill.

If they decide not to reply to the civil bill, you can still ask the court to proceed.

Consent

If you and your spouse agree to the terms of separation as set out in the civil bill, your spouse can send you a letter stating that they agree. This is called a consent case and the process is usually quicker and simpler. You can reach an agreement at any stage in the process. Find out more about getting help to reach an agreement.

If your spouse does not agree to the terms of separation, this is called a contested case.

When both you and your spouse have filed all of the necessary documents, you will be given a date for the court hearing. The hearing will be held in private. You can read more about the factors considered by a court in a judicial separation case here.

After the hearing

If all the conditions are met and you have grounds for a judicial separation, the court will grant you a decree of separation. The court office will send the order to you and the other party, or your solicitors, as soon as it is ready.

Appeal

Both of you have the right to appeal if you are not happy with the decision of a Circuit Court judge. If you wish to appeal the decision, you must file your appeal documents within 28 days of the court’s decision.

Further information on applying for a judicial separation is available on the Courts Service website.

Legal advice and representation is always recommended. A solicitor who specialises in family law can help you by explaining the process and your options. You and your spouse should not use the same solicitor. Find contact information for solicitors throughout Ireland on the Law Society website.

A day in a family law court can be stressful. The Courts Service has information to help you.

• How to prepare for a court hearing
• Planning your trip to court
• What to do on the day
• Who to expect inside the courtroom
• What happens in the courtroom
• What happens when your hearing ends

You can also:

• Watch a video that explains how family law mediation works
• Find out about case progression (the management of your case before the actual hearing)
• Watch a video on how to prepare for your family law hearing
• Watch a video on what happens on the day you attend the family court

You are not legally required to use a solicitor or a barrister. If you wish, you can choose to represent yourself. However, there may be complex issues which may make it very difficult to apply for a judicial separation without any professional help.

To enquire whether you are eligible for Legal Aid, contact your nearest law centre. Legal Aid is not free and everyone must pay a contribution towards costs.

If you choose to hire a private solicitor, you should be aware that there is no fixed rate of charges for legal fees. You are advised to get some quotes before deciding on a legal firm. Contact information for solicitors firms throughout Ireland is available on the Law Society website.

Free legal advice

FLAC (Free Legal Advice Centres) is an independent, voluntary organisation. A limited number of FLAC phone clinic appointments are offered in conjunction with Citizen Information Services around the country. These appointments are with a volunteer lawyer and are confidential and free of charge. Contact your nearest Citizens Information Centre for information on FLAC phone clinic appointments in your area. FLAC’s Information and Referral Line for basic legal information is open Monday to Friday from 9.30am-1pm, and Monday evening 7pm-9pm. You can find out more about FLAC and its services.