Separation agreements in family law in Ireland are agreements drawn up by the parties to a marriage breakdown who wish to avoid the Courts to resolve their differences.
Terms of separation agreements
Most separation agreements will deal with an agreement for the parties to live apart and further matters commonly covered will include access to children if any, maintenance, custody, division of property and any other relevant matters that the parties wish to commit to writing.
The agreement to live apart should contain a date when this will commence as this date will be important if either party wishes subsequently to obtain a divorce.(This is part of the family law series of articles)
A common clause in separation agreements is a “non-molestation clause” which simply prevents the disturbance or annoyance of one party by the other after execution of the agreement.
Custody and guardianship
The issues of access and custody where there are children under 18 are important matters to cover and agreement may have been agreed between the parties about sole or joint custody.
Matters in this section may also deal with bringing a child abroad and out of the jurisdiction and detailed arrangements for access.
Remember that even where parties separate both married parents remain joint guardians of children under 18.
Matrimonial property is obviously a big issue to be dealt with in separation agreements. Common situations include one of the parties staying in the family home, perhaps until children reach the age of 18, and then the home being sold and proceeds split.
An alternative is for one party to buy out the other party’s interest in the property and become the sole owner on payment of an agreed lump sum.
A separation agreement should make provision for the payment of maintenance by one spouse to another and this will normally be the subject of extensive negotiations.
The existence of agreement in relation to maintenance does not prevent a spouse from going to the District court to seek a maintenance order under the Family law act, 1976. However the Court will consider the existence of the separation agreement terms which deal with maintenance in any order it might make.
Other matters that might be considered for inclusion in any separation agreement include
- Taxation-the receipt of maintenance by the custodial parent is taxable so the question of election to be taxed as a single person or jointly might be considered. The receipt of maintenance designated for the support of children is not taxable though.
- Succession rights-the parties may renounce their succession rights to their share of the estate of the other party under the Succession Act 1965
- Pensions-pensions in a separation agreement can be a complex issue and you would be well advised to take taxation advice if the pension is substantial
- An indemnity-most agreements will have a clause which indemnifies each party against any debts subsequently incurred by each party.
The separation agreement can be made a rule of Court-the advantage of this is that any failure to uphold the agreement can be remedied by going into Court for a contempt of Court ruling. In addition any maintenance payments can be made through the District Court clerk which will afford a greater degree of security when it comes to enforcing any failure to pay.
Separation Agreements and Future Legal Proceedings
As a separation agreement is a binding contract, subsequent judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 are not possible.
This means that a spouse is precluded from seeking the extensive range of financial and property reliefs available under the Family Law Act, 1995. A pension adjustment order is also out of the question as this is granted under the Family Law Act, 1995.
Separation Agreements and Divorce Proceedings
However a separation agreement is not a bar to subsequent divorce proceedings under the Family Law (Divorce) Act 1996 and in deciding upon divorce proceedings the Court will have to “have regard” for the terms of any separation agreement.
The difficulty can arise though where divorce proceedings are brought some time after the separation agreement has been entered into and the financial fortunes of either or both parties have changed significantly.
In K v K  High Court decided that the Court had to decide what was “proper provision” at the date of divorce, not the date of the separation agreement and this can lead to a significant redistribution of the assets.
In circumstances where the separation agreement precedes the divorce proceedings fairly recently in time then there probably will not be any reason for a significant departure from the provisions of the separation agreement (unless of course there has been a material change in financial circumstances of the parties).
In M.P. v A.P. 2005 High Court the Court held that the weight to be placed on a Judicial Separation Consent Agreement in divorce proceedings will depend on
- The length of time since agreement was reached;
- The financial background pertaining to the Consent Agreement;
- The reasonable expectation of the parties.
If your marriage has broken down you should consult a solicitor who will explain the various options open to you and the important issues to be dealt with.
Supreme Court Case-G V G
The Supreme Court made a significant ruling in 2012 when it decided the “G v G” case. This case looked at the question of how much weight or regard should be given to a previously agreed deed of separation when it comes to divorce time.
The Supreme Court made the following determinations:
- A deed of separation should be given significant weight when it comes to making provision for the parties at a later divorce hearing, especially when the deed of separation contains a “full and final settlement clause”; exceptional circumstances would be needed for a court to upset the separation agreement freely entered into-for example, substantial change such as the illness of one of the parties
- A clean break is a legitimate aspiration in Irish law, but it is not a guaranteed right and “proper provision” may see a change in circumstances being reflected in the final divorce ruling provisions
- Inherited assets should not be seen as assets obtained by both parties in the marriage
“Second bite of the cherry” cases have become more difficult as a consequence of this Supreme Court decision and parties can enter into deeds of separation which contain full and final settlement clauses with greater confidence that they will not be overturned later on.