How can a case come before the Irish family law courts?
Under Irish law a married couple cannot file for divorce unless they have been living apart for a minimum period of 4 years. However, there is a prior procedure by way of judicial separation which separating couples may avail of to determine, inter alia, financial relations between each other.
Legal separation can be approached in two ways:
· A legal separation which can be made an order of court or
· An application for a Judicial Separation which must be based on one or more of 6 grounds.
Both processes are mutually exclusive. You cannot apply for a Judicial Separation if you already have made a legal separation.
Legal Separation
A legal separation is a document recording the arrangements made between spouses in respect of maintenance, custody and access.
(For more on legal separation press here.)
A legal separation can be made an order of court to facilitate the implementation of the terms of the agreement particularly in relation to maintenance.
For details on the legislation governing the legal separation being made an order of court please press here
Judicial Separation
To apply for a Judicial Separation the applicant must rely on one of 6 grounds.
(For more on the 6 grounds in Judicial Separation proceedings press here)
An applicant, if successful, is granted a Judicial Separation and the Judge will make an order in great detail concerning the future maintenance provisions and will further make orders in relation to the disposition or use of any property.
Irish Constitution and the sanctity of marriage.
Article 41.3.1
“The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack”
The legislation introducing Judicial Separation had to be mindful of this Article of the Constitution and to allow for rescission of a Judicial Separation.
Similarly if a separation agreement is torn up between the husband and the wife then the order of the court is meaningless.
What about property transferred before the rescission of the Judicial Separation and prior to the scrapping of the legal separation?
In Judicial Separation cases Section 8 provides that following a decree of judicial separation it is open to the applicant and the respondent to apply to the court to rescind the decree of separation granted and the judge upon being satisfied that such a reconciliation has taken place shall make the order.
To see Section 8 please press here
Collusion between the spouses to obtain a Judicial Separation.
Section 44 specially provides that collusion between the spouses in connection with an application for a judicial separation shall not be a bar to the grant of a decree of judicial separation.
To see Section 44 press here
Maurice Manning speaking at the Seanad on Wednesday 1st March 1989 said
Sections 42 and 43 are technical amendments. Section 44 is slightly convoluted. It states that collusion between the spouses when applying for a judicial separation, except when an application for a decree of judicial separation is made on the ground of adultery and the respondent proves that the adultery was committed with the connivance of the applicant, or any conduct, including condonation or recrimination, shall not be a bar to the grant of a decree of judicial separation. Press here for transcript
Judicial Separation and Property Adjustment Orders.
Prior to the granting of a Judicial Separation the court may make such ancillary order as it thinks fit including property adjustment orders in respect of the family or shared home and other property.
For legislation governing these property adjustment order click here