Judicial Separation and Separation Agreements

Separation agreements drawn up and agreed between parties and Judicial Separation are very different animals with one significant factor that you must be aware of..

Since a decision of the Supreme Court in 1998 in P.O’D v A.O’D a separation agreement agreed between 2 parties is a bar to the subsequent obtaining of a Judicial separation.

The hugely significant factor in this decision is that without a Judicial separation  you are not entitled to look for any of the large range of property and financial reliefs under the Family Law Act, 1995. The reason for this is that the Supreme Court held that it would not be right to go behind the separation agreement freely entered into by two consenting adults by one of the parties seeking a Judicial separation which would have the effect of tearing up the separation negotiated and entered into freely by both parties.

However a separation agreement cannot act as an impediment to seeking relief in maintenance proceedings under the Family Law Act 1976 (Maintenance of Spouses and Children) nor can it prevent divorce proceedings from being instituted. However and subsequent divorce proceedings will be heavily influenced by the separation agreement entered into by the parties.

The influence of the separation agreement will depend on

• The circumstances surrounding the agreement
• When the agreement was negotiated and executed

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