(3) In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force.
However, this does not prevent Courts from making further additional provision to ensure ‘proper provision’ for spouses and dependent children as has been seen in various decided cases and the Supreme Court has found that Courts have ‘very broad discretion’ in these cases.
Courts have been seen to vary in what weight they attach to previous agreements but the following general points can be made:
Courts will have regard to prior agreements and the circumstances of that time;
Courts’ ability to make proper provision for spouses and dependent children cannot be ousted by a deed of separation or consent terms in judicial separation;
The court will consider the financial resources of both parties at the time of divorce;
More recent settlements will have greater weight than older ones as the circumstances of both parties are less likely to have significantly changed;
A full and final settlement reached at the time of divorce will have greater weight than one reached on judicial separation;
Courts may be less likely to intervene where generous provision was made for the less wealthy spouse in a prior settlement;
Prior settlements are more likely to be revisited where proper disclosure was not made at the time
The source of assets of the marriage, for example inherited assets introduced by one spouse to the marriage, will carry some weight.
All of these cases tend to be decided on the particular circumstances of each case so hard and fast guidelines or rules are difficult to arrive at.
Supreme Court, G v G Case
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.
The Family Law Courts in Ireland have considerable powers to make additional orders, called ancillary orders, in divorce and judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 ,the Family Law Act, 1995 (judicial separation proceedings)and the Family Law (Divorce) Act, 1996 (divorce proceedings).
The main factor determining these orders is the need to make “proper provision” for spouses and dependent members of the family.
The Courts also have the power to make preliminary orders in relation to judicial separation and divorce proceedings and these will be granted before the full hearing involving divorce or judicial separation.
An example of such a preliminary order is called a maintenance pending suit order which allows for maintenance payments to be made prior to the hearing of the divorce or Judicial separation proceedings. Domestic violence can also be dealt with through a preliminary order.
Custody and access orders
Custody and access arguments can be dealt with by way of preliminary order also as well as at the substantive hearing of the proceedings. Remember though that orders concerning access and custody can be obtained even where divorce or judicial separation proceedings are not contemplated under the Guardianship of Infants Act 1964.
It is worth noting also that even where divorce takes place a divorced person can still avail of relief under the Domestic Violence Act, 1996 even though ordinarily the person would not be considered to be a spouse in the eyes of the law once the decree of divorce is granted.
Financial Provision on Marriage Breakdown
Financial provision can be made on the breakdown of a marriage under the following broad headings:
maintenance
property
succession.
Maintenance
The common law duty for spouses to maintain one another is continued in the legislation covering marital breakdown and survives the ending of the marriage. The liability to maintain a former spouse only ends when that spouse dies or remarries.
This duty continues despite the execution of a separation agreement or an order of judicial separation or divorce.
Three types of maintenance order can be made under the Family Law Act, 1995:
a periodical payments order
a secured periodical payments order
a lump sum payment order.
The Family Law Act, 1995 also allows a court to make an attachment of earnings order at the same time as the making of a periodical payments order without any default in payment having taken place.
All ancillary relief orders will be granted by the Court in the light of ‘proper provision for each spouse and for any dependent member of the family…’ Learn more about maintenance orders here.
Property-The Family Home
The Family Home Protection Act 1976 describes the family home as “primarily a dwelling in which a married couple ordinarily reside”.
When a marriage breaks down in Ireland and divorce or judicial separation proceedings are instituted the family home will loom large in considerations as for many couples it is the principal or only asset that they have.
Property Adjustment Orders and Preliminary Orders
Courts can make property adjustment orders in separation or divorce proceedings; in fact they can also make preliminary orders in respect of the family home which are orders which predate the hearing of the legal proceedings.
Courts have the power to make the following orders on separation or divorce :
I. Preliminary orders (effective until the hearing of the judicial separation or divorce proceedings)
II Property adjustment orders
1. The property to be transferred from one spouse to another or to another person
2. The reduction or extinguishment of any interest that a spouse has in the property
3. The settlement of the property to either spouse
However no order can be made in favour of a spouse who remarries and an application for a property adjustment order must be made during the lifetime of the other spouse.
The Courts can also order the sale of the family home but cannot do so if one of the spouses remarries and is living in the home with his/her new spouse.
All property adjustment orders can be varied except an order directing the sale of the family home and this has been carried out.
Property adjustment orders can also be made in respect of all types of property, not just the family home.
Succession rights
A spouse has an entitlement under the Succession Act, 1965 to one half (if there is no children) or one third (if there is children) of the deceased spouse’s estate.
However the Judicial Separation and Family Law Reform act 1989 allowed for the first time the extinguishment of the share to which the spouse would be entitled under the Succession Act, 1965 but only provided proper provision has been made for the spouse losing their succession entitlements.
This of course only applies in Judicial Separation cases as in divorce cases the “spouse” is no longer a “spouse” after divorce and loses Succession Act entitlements automatically.
However the Court will generally make allowance for this loss by making what it considers the necessary ancillary orders on granting a decree of divorce.
Pension adjustment orders
The Family Law Act, 1995 allows the making of a pension adjustment order which aims to allow the distribution of pension benefits by disregarding the terms of the pension scheme and either party can apply for this order.
However if you remarry you are prevented from applying for such an order.
It is important to note that any attempt by a separating couple to divide the benefits of a pension scheme between them will not work and will have no effect. Regardless of what an individual member of a pension scheme wants, the trustees of the scheme are obliged to be bound by the terms of the scheme.
If the parties come to agreement in relation to the pension then they will need an order of Court to effect that agreement and this can only be done after the granting of a decree of divorce or judicial separation by way of an order of Court.
If separating couples execute a deed of separation between themselves then they are depriving the Court of making an order in respect of the pension.
The recommended procedure would be to agree the terms of agreement between spouses, issue proceedings under the Judicial Separation and Family Law Reform Act, 1989 and an application to have the settlement terms made an order of Court and the relevant pension adjustment order made on consent.
Factors the Court Considers When Making Orders on Divorce and Judicial Separation
The factors the Court will consider when making these orders are
I. The actual and potential financial resources of both spouses
II. The actual and likely financial needs, obligations and responsibilities of both spouses
III. The standard of living of the spouses before the separation or divorce
IV. The length of marriage and the ages of the spouses
V. Spousal contributions-this is increasing in importance in the Court’s considerations and looks at not just financial contributions but time spent looking after home and family
VI. Earning capacity or lack of it due to time spent in the home due to marital responsibilities and the lack of future earning capacity due to the sacrifice of career made during marriage
VII. Statutory entitlements-any benefit or income either spouse is entitled to in law
VIII. Conduct-this is not a hugely important factor unless the conduct is egregious
IX. The accommodation needs of both spouses
X. Any separation agreement entered into by the spouses and which is still in effect
All of these factors will be considered under the overarching goal of attempting to ensure proper provision is made for both the spouse and any dependent members of the family.
It is noteworthy that even where there is a full and final settlement clause in the divorce the Courts can still make a change to any maintenance order as in Irish law there is really no “clean break”.
Procedure in the Circuit Court and High Court
The Circuit Court and the High Court have jurisdiction to hear
applications for divorce
decrees of judicial separation
applications for orders under the Family Law Act, 1995
applications for decrees of nullity.
Most of these proceedings will be commenced with a Family Law Civil Bill (Circuit Court) or Family Law Summons (High Court).
Where financial relief is sought it will be necessary to file an Affidavit of Means. Where there are dependent children involved, regardless of whether financial relief is sought, an Affidavit of Welfare must be sworn and filed.
Discovery
Discovery is the procedure whereby both parties obtain full and detailed information about the other’s income, debts, assets, and liabilities. There are strict rules in the Circuit Court and High Court in relation to discovery.
There are now two ways to legally end a marriage in Ireland-divorce and judicial separation.
The Judicial Separation and Family Law Reform Act 1989 gives the Court wide discretion to make orders in relation to the granting of a decree of judicial separation.
One significant difference between divorce and judicial separation in Ireland is the element of “fault”-there is no requirement to show fault on behalf of one of the parties in a divorce decree but there is such a requirement to obtain a decree of judicial separation.
The grounds for judicial separation
The Judicial Separation and Family Law Reform Act 1989 provides 6 grounds for the granting of judicial separation by either the Circuit Court or High Court.
1. Adultery
Adultery is a ground for judicial separation and while it can be difficult to prove, it can be inferred from the circumstances.
2. Behaviour
The behaviour of one of the parties which renders it impossible for the other party to live with the offending party is also a ground. Physical and mental cruelty provides the basis of this reason for judicial separation.
3. Desertion
Desertion by one of the parties is another ground but it must be for a period of at least one year and continuous. Constructive desertion, where one party deserts because of the bad behaviour of the other party, is included in this ground for a decree.
4. The parties agree and have lived apart for at least 1 year
The living apart must be continuous and the reasons for doing so are irrelevant provided both parties agree to judicial separation.
5. Normal marital relationship has not existed for at least 1 year
Where a normal marital relationship has not existed for at least 1 year and regardless of the presence of fault, a Court may grant a decree under this heading. There is no definition of what a ‘normal marital relationship’ in the legislation.
Nevertheless, this is the most common basis for the grant of a decree of judicial separation.
6. The parties have lived apart for at least 3 years
Under this ground there is no need to show fault-this is a useful ground where there is no fault and the other party will not consent.
Note: the advantage of applying for a decree of judicial separation on the grounds of adultery or cruelty (numbers 1 and 2 above) is the applicant spouse does not have to wait 1 year to issue proceedings.
Welfare of children in Judicial Separation
Once one of the six grounds for judicial separation outlined above is proven on the balance of probabilities a court will grant a decree of judicial separation PROVIDED the welfare of any dependent children of the marriage has been provided for.
A dependent child is a child who has not reached the age of 18 or the age of 23 if in full time education.
Welfare is concerned with the religious, moral, intellectual, social and physical welfare of the dependent child.
3.—(1) Where, on an application under section 2 of this Act, the court is satisfied that any of the grounds referred to in subsection (1) of that section which have been relied on by the applicant have been proved on the balance of probabilities, the court shall, subject to subsection (2) of this section and sections 5 and 6 of this Act, grant a decree of judicial separation in respect of the spouses concerned.
(2) (a) Where there are, in respect of the spouses concerned, any dependent children of the family, the court shall not grant a decree of judicial separation unless the court—
(i) is satisfied that such provision has been made, or
(ii) intends by order upon the granting of the decree to make such provision,
for the welfare of those children as is proper in the circumstances.
(b) In this subsection—
“dependent children of the family” has the same meaning as it has for the purposes of Part II of this Act;
“welfare” comprises the religious and moral, intellectual, physical and social welfare of the children concerned.
(3) Upon the granting of a decree of judicial separation by the court, the court may, where appropriate, by order give such directions under section 11 of the Guardianship of Infants Act, 1964 , as it thinks proper regarding the welfare or custody of, or right of access to, an infant (being an infant within the meaning of that Act) as if an application had been made under that section.
A solicitor involved in judicial separation proceedings is obliged by law to discuss with his/her client the possibility of reconciliation and mediation and negotiation of a separation agreement satisfactory to both parties.
If the Court is satisfied that all of this has occurred it may grant a decree of judicial separation and once this is done the court may make further ancillary relief orders which we look at elsewhere on this site.
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 any 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
Please use the contact form below if you have any issues arising from the above or if you need to speak to a solicitor.
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)
Non molestation
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.
Property
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.
Maintenance
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 [2003] 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.
