This office advises all our clients that they should only consider entering into a Deed of Separation or seeking a Judicial Separation as an last resort. Every effort should be made to try and resolve the difficulties that have arisen in the marriage.

We advise all our clients when they come to us that as a first step they should seek counselling.

Mediation is a process that assists people in dispute and helps them reach their own agreement. We would strongly recommend that in many cases the services of an experienced mediator should be used to facilitate this process. An expert mediator can help the parties reach their own agreement and thus avoid an extremely lengthy and often very expensive and traumatic legal case.

Unfortunately there are many cases where it is not possible to reconcile the differences that have arisen in a relationship and separation is unfortunately inevitable. Hopefully it will be possible to negotiate the terms of a settlement through mediation but if it is not, then we are happy to advise clients concerning the completion of a separation agreement.The main benefit of concluding a separation agreement is that you can avoid a lengthy and often divisive court hearing.

The main matters covered in a separation agreement are first of all the agreement to separate and live apart. The other main matters covered are:-

• Guardianship, access and custody of children.

• Maintenance and financial provisions.

• Property.

• Succession.

• Pension.

• Taxation.

It should be noted that where parties seek to enter into a separation agreement with your spouse, the party generally cannot subsequently issue legal proceedings seeking a judicial separation. It should be always open to either spouse to bring an application to review maintenance payments both for the other spouse and for any children and similarly neither party can be prevented from bringing an application to deal with issues in relation to custody, access or guardianship.

Although completing a separation agreement may prevent you making an application for a judicial separation, it will not prevent you making an application for a divorce. The law concerning separation agreements and subsequent divorce proceedings is relatively clear. The separation agreement is binding on the parties but if either one of them seeks a divorce, then the court should have regard to the terms of a separation agreement but the court has to be satisfied that proper provision has been made for all relevant parties before they will grant an order for divorce. The law at present states that the court should assess assets at the date of the divorce although the court will also take into account the provisions of any separation agreement and will also take into account the fact that assets may have been acquired subsequent to the separation and may have been acquired due to the other spouse’s sole efforts.

The definition of “proper provision” at the date of divorce has been contested over the years and the case law in this particular area is developing all the time.

The main difference in law between divorce and judicial separation is that a divorce allows both parties to remarry whereas a judicial separation does not. Also, the court may review arrangements made in a decree of judicial separation in any application for a decree of divorce. Judicial Separation is an Order granted by the Courts where the spouses fail to agree the terms of a Separation Agreement, ordering that the spouses are thereafter separated.

The Judicial Separation and Family Law Reform Act 1989 sets out that a Judicial Separation can be granted on six grounds:

Where the respondent has committed adultery

Where the respondent is behaving in such a way that the applicant cannot reasonably be expected to live with that person.

There has been desertion by the respondent of the applicant for a continuous period of at least one year immediately preceding the date of the Application.

The spouses have lived apart from one another for a continuous period of at least one year immediately proceeding the date of the Application and the respondent consents to a degree of Judicial Separation being granted.

The spouses have lived apart from one another for a continuous period of at least three years immediately proceeding the date of the Application.

The marriage has broken down to the extent that the Court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately proceeding the date of the Application.

Once a Court has determined that one of the above six grounds exist, there are two further conditions that must be satisfied before an Order of Judicial Separation will be granted. These two grounds are as follows:

1. The welfare of any dependant children of the marriage must be properly catered for and;

2. The solicitor of the applicant and the defendant must have complied with their legal obligations as outlined.